PART 2—BUILDING STANDARDS 7 8 9 9A Building regulations Local laws Incorporation by reference Regulatory impact statement not required for certain amendments 10 Application of new building regulations to building work 11 Effect of planning schemes 12 Revocation of other regulations relating to building 13 Effect on local laws 14 Accreditation of building products 15 Effect of accreditation 15A Building regulations with respect to swimming pools and spas PART 3—BUILDING PERMITS Division 1—Building permit required 16 Building permit required Division 2—Applications for building permits 17 Applications for building permits 18 Schedule 2 to apply 18A Notice to VicUrban of application

1

Division 3—Decisions on building permits 19 20 21 22 23 24 24A 25 25A 25B 25C 25D 25E 25F 25G 25H 25I 26 27 28 29 29A 29B Decision on application for building permit Types of permit Requirement for occupancy permit Guarantees and bonds Reporting authority to be notified of permit Refusal of building permit Further limitations on issue of building permit Reasons for refusal to be given Notice to building surveyor of changes Restrictions on owner-builder Application for owner-builder certificate of consent Further particulars Decision on application for certificate of consent Applications in relation to land owned by related bodies Certificate of consent Register of certificates Building Commission to publish information statement Prescribed places of public entertainment Repealed Historic buildings and special buildings Subdivision Application for building permit for demolition Suspension of demolition permit pending amendment of planning scheme

Division 5—Register and records 30 Relevant building surveyor to give copies of permits and documents to council 31 Register of building permits 32 Keeping of records 32A Council to notify VicUrban of issue of building permit PART 4—INSPECTION OF BUILDING WORK 33 34 35 36 37 38 Notification during building work Inspections at mandatory notification stages Inspection of building work—general powers Powers in relation to inspections Directions as to work Certificate of final inspection

2

PART 5—OCCUPATION OF BUILDINGS AND PLACES OF PUBLIC ENTERTAINMENT Division 1—Occupancy permits (building work) 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 Occupancy permit must be obtained Occupation must be in accordance with permit Applications for occupancy permits Schedule 2 to apply Decision on application for occupancy permit Refusal of occupancy permit Form of occupancy permit Effect of occupancy permit Reporting authority to be notified of occupancy permit Reasons for refusal to be given Public entertainment not to be conducted at place without occupancy permit Place not to be used for public entertainment without occupancy permit Use of place of public entertainment must be in accordance with permit Use of prescribed temporary structure must be in accordance with permit Applications for occupancy permits Schedule 2 to apply Refusal of occupancy permit Decision on application for occupancy permit Prescribed temporary structures—special provisions Effect of occupancy permit Form of occupancy permit Reporting authority to be notified of occupancy permit Owner to notify others of occupancy permit Reasons for refusal to be given Inspection of places of public entertainment Temporary occupation of buildings Who may apply for approval? Form of application Determination of applications Form of approval Reasons for refusal to be given

Division 4—Amendment and cancellation of permits and approvals 70 71 72 73 74 75 Amendment of permit or approval Cancellation of permit or approval if fraud or misrepresentation Cancellation of occupancy permit on other grounds Relevant building surveyor to give copies of documents to council Register of occupancy permits and temporary approvals Keeping of records

PART 6—PRIVATE BUILDING SURVEYORS 76 77 78 79 80 81 82 83 Functions of private building surveyor Additional functions When may a private building surveyor be appointed? Circumstances in which private building surveyor may not act Private building surveyor to notify council Termination of appointment Directions of Commission Effect of transfer of functions

PART 7—PROTECTION OF ADJOINING PROPERTY 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 Notice of building work to be given Adjoining owner must respond to notice Effect of agreement Effect of disagreement or request for further information Work not to be carried out until protection requirements met Emergency procedures Absent or incapable owners Appointment of agent for adjoining owner Adjoining owner may inspect plans Owner to arrange insurance cover Survey of adjoining property Entry on adjoining property Adjoining owner and adjoining occupier not to obstruct owner Expenses of adjoining owner Compensation Liability not affected Saving for easements

4

101

Lodgment of plans after completion of protection work

93 94 94 94 94 95 95 95 95 96 96 97 97 97 98 99 99 99 99 100 100

PART 8—ENFORCEMENT OF SAFETY AND BUILDING STANDARDS Division 1—Emergencies 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 Emergency orders Contents of emergency orders Duration of order Cancellation of emergency order Building notices Actions by private building surveyors Contents and form of building notice Representations by owner Cancellation of building notice Building orders—general Building orders to stop building work Building orders—minor work Form and service of building order Failure to comply with order by private building surveyor Amendment or cancellation of certain building orders Duration of order

Division 2—Building notices and building orders

Division 3—General

Contravention of emergency order or building order 100 Building permit not required 101 Completion of work required by emergency order or building order 101 Work may be carried out by municipal building surveyor 101 Minister may authorise action where immediate danger 102 Recovery of costs 102 Police assistance 102 Relevant building surveyor to notify council 103 Register of orders 103 105 105

PART 9—LIABILITY Division 1—Immunity 127 128

Immunity for Commissioner and staff of Commission and members of and persons employed, appointed or engaged by public authority 105 Immunity for building surveyor relying on certificate 106 106

Division 2—Limitation of actions

5

129 Definitions 106 130 Division not to affect certain matters 107 131–133 Repealed 107 134 Limitation on time when building action may be brought 107 134A Limitation on time when plumbing action may be brought 108 Division 3—Insurance 135 136 Order requiring insurance Offence to work as building practitioner without required insurance 137 Offence to claim to be insured when uninsured 137AA Insurance for domestic building work to be provided by designated insurers 137A Insurance for domestic building work 137B Offence for owner-builder to sell building without report or insurance 137C Warranties for purposes of homes under section 137B 137D Insurance requirements for the purposes of homes under section 137B 137E Insurance requirements for home sold before completion PART 10—THE BUILDING APPEALS BOARD AND ITS JURISDICTION Division 1—Rights of appeal 138 139 140 141 142 143 144 144A 108 108 110 111 111 113 114 119 120 121 122 122

Surveys of adjoining property Cost of supervising protection work Other disputes between owners and adjoining owners Disputes about the building permit levy Application and effect of building regulations Party walls

Division 5—Role of councils Council to administer building provisions in its municipal district 213 Appointment of municipal building surveyor 214 Agreements with other councils or the Commission 215 Agreement with private building surveyor 216 Council to charge commercial rates for work outside municipal district 216A Exemption from functions in relation to certain permits 216B Delegation by municipal building surveyor 216C Role of municipal building surveyor outside municipal district Division 6—The Crown and public authorities 217 218 219 220 221 Application of Act to the Crown and public authorities Repealed Municipal building surveyor not required to inspect building work Guidelines for Crown and public authority buildings Authorised building surveyor

PART 12A—PLUMBING WORK Division 1—Preliminary matters 221A 221B 221C Purpose of this Part Definitions applying to this Part Meaning of plumbing work

Division 2—Restrictions concerning the carrying out of plumbing work 221D 221E 221F 221FA Plumbing work only to be carried out by licensed or registered plumbers Restrictions concerning work for which compliance certificate required Restriction concerning specialised plumbing work Plumbing work must comply with this Part and

9

221G 221H 221I 221J 221K 221L 221M 221N 221O 221OA

regulations Obligations on licensed plumbers concerning their agents People involved in a plumbing business need not be licensed or registered Person must not use the title "plumber" or "plumbing practitioner" unless licensed or registered Person must not use the title "drainer" unless licensed or registered Person must not use the title "gasfitter" unless licensed or registered Exceptions to sections 221I–221K

Division 3—The licensing and registration of plumbers Licensing as a plumber Endorsement to carry out specialised plumbing work Registration as a plumber Endorsement to carry out specialised plumbing work— registered plumbers 221P Provisional registration 221Q Restricted licences 221R Restricted registration 221S Commission may refuse to license or register convicted people etc. 221T Application for licensing or registration as a plumber 221U Commission may require further information 221V Offence to give false information 221W Temporary licence or registration 221X Commission may impose conditions on licensing or registering a person 221Y Duplicate licences and registration documents 221Z How long licensing and registration last 221ZA Plumbers must notify Commission of changes of address etc. 221ZB Application for renewal of licence or registration as a plumber 221ZC Commission may require further information 221ZD Renewal of licence or registration 221ZE Commission may permit late renewals 221ZF Information to be given to unsuccessful applicants 221ZFA Licence and registration document to be returned to Registrar 221ZFB Licensed plumber to produce licence for inspection 221ZFC Registered plumber to produce registration document for inspection Division 4—Compliance certificates 221ZG

This Division does not apply to complex gasfitting work 231

10

221ZH 221ZI 221ZJ 221ZK 221ZKA 221ZL 221ZLA 221ZLB 221ZM 221ZN 221ZO

Compliance certificate must be given for most plumbing work Details that must appear on a compliance certificate Details on certificates must be accurate Only licensed plumbers may sign certificates Issue of certificates by the Commission Meaning of the total value of plumbing work Building practitioner must transfer compliance certificate to owner Other people must also transfer compliance certificate to owner Copies of certificates must be kept for 10 years Provisions concerning the supply of certificate forms Further obligation for compliance certificates for sanitary drains

231 234 235 235 236 237 237 238 238 239 240 240

Division 5—Provisions applying to particular plumbing work 221ZP

Sanitary drainage and other work must be made available for inspection before being covered 240 221ZPA Information to be provided before work starts 241 Division 6—Insurance orders 221ZQ 221ZR 221ZS 221ZT 221ZU 221ZV Order requiring insurance Offence to work as plumber without required insurance Offence to claim to be insured when uninsured Further provisions concerning required insurance Suspension of licence if insurance ceases Suspension of licence where failure to comply with insurer's direction 242 242 244 244 244 245 246 247

Division 7—Rectification of defective plumbing work

221ZW Inspector or auditor may require plumber to rectify faulty work 247 221ZX Right to apply to VCAT to have a rectification notice cancelled 249 221ZY Plumbing notice to owner/occupier to rectify defective plumbing work 250 221ZZ Owner/occupier may dispute a plumbing notice 250 221ZZA Inspector may cancel plumbing notice 250 221ZZB Plumbing order to rectify defective plumbing work 250 221ZZC Owner/occupier must comply with plumbing order 251 221ZZD Inspector may cancel plumbing order 252 221ZZE Right to apply to the VCAT to have a plumbing order cancelled 252 221ZZF Emergency plumbing order to rectify dangerous plumbing work 253 221ZZG Offence to not comply with emergency plumbing order 254

PART 13—GENERAL ENFORCEMENT PROVISIONS Division 1—Powers of Minister in relation to councils 222 223 224 225 226 227 Order of Minister Hearing of council Effect of failure to comply with order Powers of Minister and authorised persons Minister may seek administrative order Other powers not affected

Division 1A—Performance audits

13

227A 227B 227C 227D

Performance auditors Functions of performance auditor Powers of performance auditors Building practitioner must give information to performance auditor Powers of inspection of chief officer and municipal building surveyor Authorised persons Power of entry—inspections of buildings, places of public entertainment etc. Notice of entry Powers of entry—enforcement Occupier to be given copy of consent Search warrant Announcement before entry Copy of warrant to be given to occupier Powers of authorised persons on entry Powers of authorised person to require information or documents Copy of documents Protection against self-incrimination Entry in emergency Police to assist authorised persons Impersonation of authorised person Confidentiality Evidence of ownership or occupation Service of documents—generally Service on Boards Building surveyor may rely on certificate by other registered building practitioner Certificate of Registrar Appointment of agents

Offences by or relating to registered building practitioners Offence to make false or misleading statement Offence relating to disclosure of pecuniary interest Offence for agent to act without authority Repealed Right of owner to carry out required work on occupied building or land Occupier or registered mortgagee may carry out work Vacation of building or land Additional orders that may be made by the court

SCHEDULE 2—Procedures for Building Permits and Occupancy Permits 333 1 2 Form of application Building surveyor may request more information 333 334

15

3 4 4A 5 6 6A 7

Application may be refused if information not provided Reporting authorities must be consulted Reporting authority must have regard to section 188A guidelines in some cases Applicant may obtain report or consent What if a reporting authority (other than a council or council officer) fails to supply a report or consent? What if the reporting authority is the responsible authority under the Planning and Environment Act 1987? Relevant building surveyor must consider report

SCHEDULE 3—Membership and Procedure of Boards PART 1—MEMBERSHIP 1 2 3 4 5 6 7 8 9 10 11 Term of Appointment Remuneration and allowances Vacancies Application of Public Administration Act 2004 Acting members Pecuniary interests Membership of Board not office or place of profit Building Appeals Board may sit in panels Decisions not affected by certain matters Meetings Authentication of documents

PART 2—GENERAL PROCEDURE

PART 3—PROCEEDINGS BEFORE THE BUILDING APPEALS BOARD 12 13 14 15 16 17 18 19 Additional powers of Board How to commence a proceeding Parties to a proceeding Conducting a proceeding Determinations and reasons Costs Correction of errors Enforcement of determination

Directions about enforcement of old Act Building approvals Requirements before a building can be constructed Continued immunities Repealed Certificates of occupancy Instruments and other matters under the building regulations Building actions Repealed Building referees—proceedings Agreements required by determinations Accreditation Building surveyors and inspectors Proceedings—Building Control Qualification Board Offences by unregistered people—exemptions Fire protection Arbitration Temporary public buildings Delegations Re-enacted provisions Saving Provision

Building Act 1993
No. 126 of 1993 Version incorporating amendments as at 6 May 2010
PART 1—PRELIMINARY

1 Purposes The main purposes of this Act are— (a) to regulate building work and building standards; and (b) to provide for the accreditation of building products, construction methods, building components and building systems; and (c) to provide an efficient and effective system for issuing building and occupancy permits and administering and enforcing related building and safety matters and resolving building disputes; and (d) to regulate building practitioners and plumbers; and (e) to regulate plumbing work and plumbing standards; and (f) to provide for the accreditation, certification and authorisation of plumbing work, products and materials; and (g) to regulate cooling tower systems; and (h) to limit the periods within which building actions and plumbing actions may be brought.

S. 1 substituted by No. 54/2007 s. 3.

18

s. 2

2 Commencement (1) Section 1 and this section come into operation on the day on which this Act receives the Royal Assent. (2) The remaining provisions of this Act come into operation on a day or days to be proclaimed. (3) If a provision referred to in subsection (2) does not come into operation before 1 March 1995, it comes into operation on that date. 3 Definitions (1) In this Act— appointed day in relation to a class or category of building practitioners, means a day appointed for that class or category under section 6; adjoining occupier means an occupier of an adjoining property; adjoining owner means the owner of an adjoining property; adjoining property means land (including any street, highway, lane, footway, square, alley and right of way) which is so situated in relation to the site on which building work is to be carried out as to be at risk of significant damage from the building work;
S. 3(1) def. of approved auditor inserted by No. 85/2000 s. 3, repealed by No. 46/2008 s. 248(1).

*

*

*

*

*

building includes structure, temporary building, temporary structure and any part of a building or structure;

19

s. 3

Building Advisory Council means the Building Advisory Council under Part 12; Building Appeals Board means the Building Appeals Board under Part 10; Building Code of Australia means the Building Code of Australia published by the Australian Building Codes Board— (a) as amended or remade from time to time; and (b) as amended by the Victoria Appendix to that Code published by that Board as that Appendix is amended or remade from time to time; Building Practitioners Board means the Building Practitioners Board under Part 11; building practitioner means— (a) a building surveyor; or (b) a building inspector; or (c) a quantity surveyor; or (d) an engineer engaged in the building industry; or (e) a draftsperson who carries on a business of preparing plans for building work or preparing documentation relating to permits or permit applications; or (f) a builder including a domestic builder; or (g) a person who erects or supervises the erection of prescribed temporary structures; or
S. 3(1) def. of building practitioner amended by Nos 91/1995 s. 136(a) (i)–(iii), 35/2004 s. 34(1) (as amended by No. 66/2004 s. 21). S. 3(1) def. of Building Code of Australia inserted by No. 34/1997 s. 4, amended by No. 66/2004 s. 3(2).

20

s. 3

(h) a person responsible for a building project or any stage of a building project and who belongs to a class or category of people prescribed to be building practitioners— but does not include— (i) an architect; or (j) a person (other than a domestic builder) who does not carry on the business of building1; or * * * * * Building Regulations Advisory Committee means the Building Regulations Advisory Committee under Part 12; building regulations means regulations made under Part 2; building work means work for or in connection with the construction, demolition or removal of a building;
S. 3(1) def. of business day inserted by No. 39/1996 s. 3.

business day means a day that is not— (a) a Saturday or Sunday; or (b) a day that is wholly or partly observed as a public holiday throughout Victoria; certificate of consent means a certificate of consent under Division 3A of Part 3;

chief officer means— (a) in relation to the metropolitan fire district under the Metropolitan Fire Brigades Act 1958, the Chief Officer of the Metropolitan Fire and Emergency Services; and

21

s. 3

(b) in relation to any building or land outside the metropolitan fire district, the Chief Officer of the Country Fire Authority under the Country Fire Authority Act 1958; Commission means the Building Commission under Part 12; Commissioner means the Commissioner of the Building Commission under Part 12;
S. 3(1) def. of Commission amended by No. 68/2001 s. 3(1)(a). S. 3(1) def. of Commissioner amended by No. 68/2001 s. 3(1)(b).

conduct, in relation to a public entertainment, means to have a direct pecuniary interest in the proceeds or profits of the entertainment; construct, in relation to a building, includes— (a) build, re-build, erect or re-erect the building; and (b) repair the building; and (c) make alterations to the building; and (d) enlarge or extend the building; and (e) place or relocate the building on land; cooling tower has the same meaning as it has in section 3(1) of the Public Health and Wellbeing Act 2008;
S. 3(1) def. of cooling tower inserted by No. 85/2000 s. 3, substituted b y No. 46/2008 s. 248(2). S. 3(1) def. of cooling tower system inserted by No. 85/2000 s. 3, substituted b y No. 46/2008 s. 248(2).

cooling tower system has the same meaning as it has in section 3(1) of the Public Health and Wellbeing Act 2008;

22

s. 3

council means a council within the meaning of the Local Government Act 19892; decision, in relation to a matter in respect of which an appeal can be made to the Building Appeals Board, includes failure to decide; decision-maker, in relation to a matter in respect of which an appeal can be made to the Building Appeals Board, means the person or body whose decision may be the subject of that appeal;
S. 3(1) def. of domestic builder inserted by No. 91/1995 s. 136(b), amended by No. 52/1998 s. 311(Sch. 1 item 10.1). S. 3(1) def. of domestic building work inserted by No. 91/1995 s. 136(b), amended by No. 52/1998 s. 311(Sch. 1 item 10.1).

domestic builder means a builder within the meaning of the Domestic Building Contracts Act 1995;

domestic building work has the same meaning as it has in the Domestic Building Contracts Act 1995;

insured architect means an architect who is registered under the Architects Act 1991 and who is covered by the required insurance under that Act; insurer includes the Victorian Managed Insurance Authority established by the Victorian

major domestic building contract has the same meaning as it has in the Domestic Building Contracts Act 1995;

mandatory notification stage means a prescribed stage of building work;

municipal building surveyor means a person for the time being appointed, employed or nominated by a council as its municipal building surveyor for the purposes of this Act3; owner— (a) in relation to land which has been
S. 3 def. of owner amended by No. 85/1998 s. 24(Sch. item 6.1(a)(b)).

24

s. 3

s. 3

alienated in fee by the Crown and is under the operation of the Transfer of Land Act 1958, (other than land in an identified folio under that Act) means the person who is registered or entitled to be registered as proprietor, or the persons who are registered or entitled to be registered as proprietors, of an estate in fee simple in the land; and (b) in relation to land which has been alienated in fee by the Crown and is land in an identified folio under the Transfer of Land Act 1958 or land not under the operation of the Transfer of Land Act 1958, means the person who is the owner, or the persons who are the owners, of the fee or equity of redemption; and (c) in relation to Crown land reserved under the Crown Land (Reserves) Act 1978 and managed or controlled by a committee of management, means the Minister administering that Act; and (d) in relation to any other Crown land, means the Minister or public authority that manages or controls the land; owner in relation to a building, means the owner of the land on which a building is situated4; permit means building permit or occupancy permit; place of public entertainment means— (a) a prescribed building or building in a prescribed class of buildings which is used or intended to be used for the purpose of providing public entertainment; or

25

s. 3

(b) a prescribed place or place in a prescribed class of places— (i) which is enclosed or substantially enclosed; or (ii) to which admission can be gained by payment of money or the giving of other consideration— and which is used or intended to be used for the purpose of providing public entertainment; prescribed temporary structure includes a temporary structure in a prescribed class of temporary structures; private building surveyor means a building surveyor registered under Part 11 other than — (a) a municipal building surveyor; or (b) an officer or employee of the Crown or a public authority; or (c) a building surveyor authorised under section 191, 192 or 221— in his or her capacity as such a municipal building surveyor, officer, employee or authorised building surveyor; proceeding, in relation to a proceeding of the Building Appeals Board, means— (a) an appeal to that Board under Divisions 1 and 2 of Part 10; or (b) a matter referred to that Board under Division 3 of that Part; or (c) an application to that Board under Division 4 of that Part; or (d) any other matter within that Board's
S. 3(1) def. of private building surveyor amended by No. 71/1995 s. 7(2).

26

s. 3

jurisdiction that, by the Act or regulation conferring the jurisdiction, is declared to be a proceeding; protection work means— (a) permanent or temporary work of— (i) underpinning, including the provision of vertical support, lateral support, protection against variation in earth pressures, provision of ground anchors and other support for adjoining property; or (ii) shoring up of adjoining property; or (iii) overhead protection for adjoining property; or (iv) other work designed to maintain the stability of adjoining property or to protect adjoining property from damage from building work; or

(b) any work or use of equipment necessary for the provision, maintenance and removal of work referred to in paragraph (a)— whether or not the work or equipment is carried out or used on, over, under or in the air space above the land on which the building work is or is to be carried out or the adjoining property; public authority means a body established for a

27

s. 3

public purpose by or under an Act and includes a council; public entertainment means an entertainment or meeting to which admission may ordinarily be gained by members of the public; registered building practitioner means a building practitioner registered under Part 11; relevant building surveyor— (a) in relation to an application to, or permit, approval, inspection, direction, notice or order issued or given by, a municipal building surveyor, means the municipal building surveyor; and (b) in relation to an application to, or permit, approval, inspection, direction, notice or order issued or given by, a private building surveyor, means the private building surveyor; and (c) in relation to the carrying out by the Commission of the functions of a municipal building surveyor or a function specified in section 199(5), means the Commission; and (d) in relation to the carrying out by a building surveyor authorised under section 191, 192 or 221 of the functions of a municipal building surveyor, means the authorised building surveyor; relevant council, in relation to a building or land, means the council of the municipal district in which the building or land is situated; reporting authority means a body or person (other than a municipal building surveyor or private building surveyor to whom an application is
S. 3(1) def. of reporting authority amended by No. 28/2000 s. 12.

28

s. 4

made) that is required by this Act or the regulations or by any other Act or regulations to report on or consent to an application for a permit;
S. 3(1) def. of required insurance inserted by No. 91/1995 s. 136(d), substituted by No. 102/2003 s. 41. S. 3(1) def. of risk management plan inserted by No. 85/2000 s. 3, repealed by No. 46/2008 s. 248(1). S. 3(1) def. of risk management plan audit inserted by No. 85/2000 s. 3, repealed by No. 46/2008 s. 248(1).

required insurance means the insurance required by order under section 135 and, in the case of insurance to which section 137AA applies, complying with section 137AA;

*

*

*

*

*

*

*

*

*

*

temporary structure includes— (a) a booth, tent, marquee or other temporary enclosure, whether or not a part of the booth, tent, marquee or enclosure is permanent; or (b) a seating structure whether enclosed or not, including a mobile seating structure. (2) In Part 7 a reference to the owner is a reference to the owner of land on which building work is

29

s. 5

s. 4

proposed to be or is carried out. 4 Objectives of Act (1) The objectives of this Act are— (a) to protect the safety and health of people who use buildings and places of public entertainment; (b) to enhance the amenity of buildings; (c) to promote plumbing practices which protect the safety and health of people and the integrity of water supply and waste water systems; (d) to facilitate the adoption and efficient application of— (i) national building standards; and (ii) national plumbing standards; (e) to facilitate the cost effective construction and maintenance of buildings and plumbing systems; (f) to facilitate the construction of environmentally and energy efficient buildings; (g) to aid the achievement of an efficient and competitive building and plumbing industry. (2) It is the intention of Parliament that in the administration of this Act regard should be had to the objectives set out in subsection (1). 5 Application to Crown and public authorities Except to the extent set out in Division 6 of Part 12, this Act does not bind the Crown in right of the State of Victoria or a public authority. 6 Appointed days—building practitioners5 (1) The Minister, by notice published in the
S. 4 amended by Nos 39/1996 s. 4, 85/2000 s. 4, substituted by No. 54/2007 s. 4.

30

Government Gazette, may appoint a day or days on which the provisions of this Act relating to building practitioners apply to all building practitioners or any specified class or category of building practitioners. (2) The day appointed for any class or category of building practitioners must not be later than 1 January 1996. (3) Despite anything to the contrary in this Act, a provision of this Act relating to building practitioners only applies to a class or category of building practitioners specified in a notice under subsection (1) on and from the appointed day for that class or category. (4) This section does not apply to Part 9. __________________

31

s. 7

PART 2—BUILDING STANDARDS

7 Building regulations (1) The Governor in Council may make regulations for or with respect to prohibiting or regulating— (a) the construction, use, maintenance, demolition and removal of buildings; (b) any matter relating to the safety of buildings and places of public entertainment; (c) the use and maintenance of places of public entertainment. (2) Without limiting the generality of subsection (1), regulations under this Part may— (a) provide for any matters set out in Part 1 of Schedule 1; and (b) establish standards and requirements relating to any matter referred to in subsection (1)(a), (b) or (c) or Part 1 of Schedule 1; and (c) require the carrying out of building work and maintenance on existing buildings and building work. (3) The standards established by the regulations may be expressed in terms of performance, types of material, methods of construction or in other terms. (4) The regulations may provide for buildings constructed with particular materials, designs or methods of construction to be deemed to satisfy the prescribed standards. (5) The regulations may apply to existing buildings, whether or not building work is being or is proposed to be carried out on those buildings.
S. 7(1)(a) amended by No. 66/2004 s. 4.

32

s. 8

8 Local laws (1) The building regulations may empower a council to make local laws for or with respect to any matter set out in Part 1 of Schedule 1. (2) The Local Government Act 1989 applies in relation to the making, amendment or revocation of a local law under a power conferred by the building regulations as if the making, amendment or revocation of the local law was authorised under Part 5 of that Act. (3) A local law made in relation to a municipal district under a power conferred by the building regulations is deemed to be a building regulation in force in relation to the municipal district. 9 Incorporation by reference (1) The building regulations may apply, adopt or incorporate, either wholly or in part and with or without any modification, any matter contained in the Building Code of Australia or any other document as in force or as issued or published at a particular time or as in force or as issued or published from time to time.
S. 9(2) substituted by No. 68/2001 s. 4(1).

(2) Section 32 of the Interpretation of Legislation Act 1984 does not apply to the application, adoption or incorporation by the building regulations of any matter contained in a planning scheme approved under the Planning and Environment Act 1987. 9A Regulatory impact statement not required for certain amendments (1) This section applies if a particular building regulation applies, adopts or incorporates any matter contained in a planning scheme approved under the Planning and Environment Act 1987. (2) Despite anything to the contrary in Part 2 of the

S. 9A inserted by No. 68/2001 s. 5.

33

s. 10

Subordinate Legislation Act 1994, it is not necessary for the Minister to ensure that a regulatory impact statement is prepared in respect of that regulation. 10 Application of new building regulations to building work (1) A building regulation or an amendment to a building regulation, does not apply to the carrying out of any building work in accordance with a building permit existing immediately before the building regulation or amendment commences. (2) A building regulation, or an amendment to a building regulation, does not apply to the carrying out of building work if the relevant building surveyor is satisfied, and certifies in writing, that substantial progress was made on the design of the building before the building regulation or amendment commenced. (3) Subject to any determination of the Building Appeals Board, building work referred to in subsection (1) or (2) must be carried out in accordance with the provisions of any regulations, by-laws, local laws or enactments in force at the material times as if the building regulation or amendment had not come into operation. (4) Despite subsections (1) to (3), the relevant building surveyor and the owner of the building or land concerned may agree that a building regulation, or an amendment to a building regulation, is to apply to the carrying out of building work referred to in those subsections.

11 Effect of planning schemes

34

s. 11

(1) If a provision of a planning scheme under the Planning and Environment Act 1987 regulates the siting of buildings in respect of a municipal district or part of a municipal district, any building regulation which also regulates that matter— (a) if not inconsistent with that provision, must be complied with in addition to that provision; (b) if inconsistent with that provision— (i) so far as is practicable, must be read so as to resolve the inconsistency; and (ii) subject to subparagraph (i), to the extent of the inconsistency, ceases to have effect in that municipal district or that part of the municipal district on the coming into operation of the provision of the planning scheme for the period that the provision is in force. (2) A council must publish notice in a newspaper circulating generally in its municipal district of the fact that a regulation under this Part has ceased to have effect in the municipal district or part of it. 12 Revocation of other regulations relating to building6 (1) Despite anything to the contrary in any other Act, the Governor in Council, on the recommendation of the Minister, may revoke any statutory rule made under any other Act to the extent that it provides for a matter set out in Part 1 of Schedule 1. (2) Before a statutory rule which provides for a matter set out in Part 1 of Schedule 1 is made under another Act, the Minister administering that Act must refer the statutory rule to the Minister administering this Act for consideration. (3) The referral of a statutory rule under subsection

35

s. 13

(2) is not a condition precedent to the making of the rule. (4) A failure to refer a statutory rule under subsection (2) does not affect the validity or operation of the rule but the rule may be revoked under subsection (1). 13 Effect on local laws (1) A local law made under Part 5 of the Local Government Act 1989 has no force or effect to the extent that it provides for any matter set out in Part 1 of Schedule 1. (2) Subsection (1) does not apply to a local law made under the powers conferred by the building regulations. 14 Accreditation of building products (1) A building product, construction method, design, component or system connected with building work and accredited by the Building Regulations Advisory Committee or any other person or body prescribed for the purposes of this section is accredited for the purposes of this Act and the building regulations. (2) The accreditation is subject to any conditions or variations imposed by the Building Regulations Advisory Committee or the prescribed person or body from time to time and remains in force until the accreditation is revoked by the Committee, person or body.

36

s. 15

15 Effect of accreditation (1) The building regulations may provide for the issue of certificates of accreditation for building products, construction methods, designs, components and systems accredited by the Building Regulations Advisory Committee or a prescribed person or body. (2) The relevant building surveyor must not refuse to approve building work on the ground that any building product, construction method, design, component or system connected with the building work is unsatisfactory if the product, method, design, component or system is accredited by the Building Regulations Advisory Committee or a prescribed person or body and it complies with that accreditation.
S. 15A inserted by No. 68/2001 s. 6.

15A Building regulations with respect to swimming pools and spas (1) The Governor in Council may make regulations for or with respect to— (a) the construction, installation, maintenance and operation of swimming pools and spas and associated services; and (b) the construction, installation, maintenance, operation and use of— (i) equipment associated with swimming pools and spas, including safety equipment; and (ii) swimming pool barriers and spa barriers and associated services. (2) Despite section 262(f), regulations made under subsection (1) may impose penalties not exceeding 50 penalty units for a contravention of those regulations. __________________

37

s. 16

PART 3—BUILDING PERMITS

Division 1—Building permit required 16 Building permit required (1) A person must not carry out building work unless a building permit in respect of the work has been issued and is in force under this Act and the work is carried out in accordance with this Act, the building regulations and the permit. P 100 penalty units, in the case of a natural person. 500 penalty units, in the case of a body corporate. (2) Subsection (1) does not apply to building work exempted by or under this Act or the regulations. Division 2—Applications for building permits 17 Applications for building permits An application for a building permit may be made to a municipal building surveyor or to a private building surveyor appointed under Part 6— (a) by or on behalf of the owner of the building or the owner of the land, in or on which the building work is to be carried out; or (b) if the land in or on which the building work is to be carried out is a lot of a kind referred to in section 9AA(1) of the Sale of Land Act 1962, by the purchaser under a contract for the sale of that lot. 18 Schedule 2 to apply Schedule 2 applies in relation to an application for a building permit under this Part.

38

s. 18A
S. 18A inserted by No. 35/2006 s. 9.

18A Notice to VicUrban of application (1) This section applies if— (a) an application for a building permit relates to the carrying out of building work on land in a project area within the meaning of the Victorian Urban Development Authority Act 2003; and (b) a resolution is in force under Division 5A of Part 3 of that Act levying a general development charge or an infrastructure recovery charge in respect of that project area. (2) The relevant building surveyor must without delay — (a) notify the Victorian Urban Development Authority in writing of— (i) the application; and (ii) the cost of the building work calculated in accordance with section 201; and (iii) any refusal of the application under section 201(6)(b) or 201(6)(c); and (iv) any decision of the Building Appeals Board to modify the cost of the building work; and (b) provide the Victorian Urban Development Authority with a copy of any relevant planning permit that authorises both the construction of the buildings to which the building work relates and a subdivision of the land on which the building work is to be carried out.

39

s. 19

Division 3—Decisions on building permits 19 Decision on application for building permit (1) The relevant building surveyor must decide an application for a building permit by— (a) issuing the permit; or (b) issuing the permit with conditions; or (c) refusing the permit. (2) The regulations may prescribe a time within which the relevant building surveyor must decide an application for a building permit. (3) The relevant building surveyor is deemed to have refused a building permit if the application is not decided within the prescribed time. 20 Types of permit A building permit may be— (a) a permit for the whole of the proposed building work; or (b) a permit for a stage of proposed building work. 21 Requirement for occupancy permit (1) The relevant building surveyor must specify in a building permit— (a) whether an occupancy permit is required under subsection (2) in respect of the building work; and (b) whether the occupancy permit is required for the whole or part of the building in respect of which the building work is carried out.

40

s. 22

(2) An occupancy permit is required in respect of all building work except— (a) building work which the relevant building surveyor considers to be minor; or (b) building work which the relevant building surveyor considers does not compromise the suitability of the building for occupation; or (c) prescribed building work. 22 Guarantees and bonds In prescribed circumstances, a building permit may be issued subject to a condition that the applicant deposit with the relevant council or, in the case of a permit issued by a private building surveyor, with the Commission— (a) a bond for an amount determined in accordance with the regulations; or
S. 22(b) substituted by No. 11/2001 s. 3(Sch. item 8).

(b) an undertaking to pay that amount together with a guarantee provided by a body that is permitted to use the expression "bank" under section 66 of the Banking Act 1959 of the Commonwealth— to secure the complete and satisfactory carrying out of the work authorised by the building permit. 23 Reporting authority to be notified of permit If the relevant building surveyor issues a building permit which differs from or fails to implement the recommendations in a reporting authority's report under Schedule 2 on the application for the permit, the relevant building surveyor must notify the reporting authority without delay of the permit and give the reporting authority a copy of the permit.

41

s. 24

24 Refusal of building permit (1) Subject to section 24A and Division 4, the relevant building surveyor must not issue a building permit unless he or she is satisfied that— (a) the building work and the building permit will comply with this Act and the building regulations; and (b) any consent of a reporting authority required under this Act or the regulations or under any other Act or regulations is obtained or deemed to have been obtained in accordance with Schedule 2; and (c) any relevant planning permit or other prescribed approval has been obtained; and (d) the building permit will be consistent with that planning permit or other prescribed approval. (2) Subject to section 24A and Division 4, the relevant building surveyor must not issue a building permit that imposes on the applicant lesser or greater standards or requirements than those prescribed by this Act or the building regulations, unless permitted to do so by this Act or the building regulations. (3) The relevant building surveyor must not issue a building permit for the carrying out of building work for which notice is required to be given to the Victorian Urban Development Authority under section 18A unless the Authority has notified the relevant building surveyor under section 51ZA of the Victorian Urban Development Authority Act 2003 that— (a) a general development charge or an
S. 24(1)(b) amended by No. 28/2000 s. 13(a). S. 24(1) amended by No. 66/2004 s. 5(1).

infrastructure recovery charge is not payable in respect of the building work for which the permit is to be issued; or (b) if a general development charge or an infrastructure recovery charge is payable in respect of that building work, the charge has been paid or the person liable to pay the charge has entered into an agreement with the Authority under section 51Y of that Act to pay the charge.
S. 24(4) repealed by No. 66/2004 s. 5(2).

(5) If an amount of community infrastructure levy is payable under Part 3B of the Planning and Environment Act 1987 in respect of a development for which building work is required, the relevant building surveyor must not issue a building permit in respect of that building work unless he or she is satisfied that— (a) that amount of levy has been paid to the relevant collecting agency under that Part; or (b) an agreement to pay that amount of levy has been entered into under that Part.

S. 24(5)(a) amended by No. 101/2004 s. 11.

S. 24A inserted by No. 66/2004 s. 6.

24A Further limitations on issue of building permit

43

s. 24A

(1) The relevant building surveyor may consider an application for a building permit for building work that is not domestic building work but must not issue the permit unless he or she is satisfied that— (a) each building practitioner to be engaged in the building work is registered under Part 11; and (b) each architect to be engaged in the building work is an insured architect. (2) The relevant building surveyor may consider an application for a building permit for domestic building work that is to be carried out under a major domestic building contract but must not issue the permit unless he or she is satisfied that— (a) the work is to be carried out by a builder who is registered under Part 11 in the appropriate class of domestic builder and is covered by the required insurance; and (b) each architect to be engaged in the building work is an insured architect. (3) The relevant building surveyor may consider an application for a building permit for domestic building work where the cost of the work (estimated in accordance with section 201) is more than $12 000 and the work is not to be carried out under a major domestic building contract but must not issue the permit unless he or she is satisfied that— (a) the work is to be carried out by— (i) a builder who is registered under Part 11; or (ii) an architect who is registered under the Architects Act 1991; or (b) the applicant has been issued with a certificate of consent for the work; or

44

s. 25

(c) the applicant is the Director of Housing within the meaning of the Housing Act 1983. 25 Reasons for refusal to be given The relevant building surveyor must notify an applicant for a permit in writing without delay of the refusal of the permit and the reasons for the refusal.
S. 25A inserted by No. 66/2004 s. 7.

25A Notice to building surveyor of changes (1) If a building permit has been issued in respect of building work to be carried out by a building practitioner or an insured architect and subsequently the engagement of the building practitioner or architect ends, that building practitioner or architect and the owner of the building or land in respect of which the permit is issued must, within 14 days after that engagement ends, each give the relevant building surveyor written notice of the ending of that engagement. P 10 penalty units. (2) If a building permit has been issued in respect of building work and subsequently a building practitioner or insured architect is engaged to carry out the building work, the owner of the building or land in respect of which the permit is issued must, within 14 days after that engagement, give the relevant building surveyor written notice of the engagement including details of— (a) the building practitioner's registration under this Act; or (b) the architect's registration under the Architects Act 1991. P 10 penalty units. (3) A builder who is engaged to carry out domestic building work after a building permit is issued in

45

s. 25B

respect of the building work must, within 14 days after that engagement, give the relevant building surveyor written notice of the engagement including details of the required insurance by which the builder is covered. P 50 penalty units.
S. 25B inserted by No. 66/2004 s. 7.

25B Restrictions on owner-builder An owner of land or a building must not carry out domestic building work as builder on that land or in respect of that building if the cost of the work (estimated in accordance with section 201) is more than $12 000 unless the owner— (a) has been issued with a certificate of consent for the work; or (b) is a builder who is registered under Part 11; or (c) is an architect who is registered under the Architects Act 1991; or (d) is the Director of Housing; or (e) is carrying out the work in accordance with an emergency order, a building notice or a building order made under Part 8. P 50 penalty units.

Division 3A—Certificates of consent for owner-builders

Pt 3 Div. 3A (Heading and ss 25C–25I) inserted by No. 66/2004 s. 8.

46

s. 25C

S. 25C inserted by No. 66/2004 s. 8.

25C Application for owner-builder certificate of consent (1) A natural person may apply to the Building Practitioners Board for the issue of a certificate of consent to carry out domestic building work on land. (2) The application must— (a) contain the prescribed information; and (b) be made in the prescribed manner; and (c) be accompanied by— (i) a statutory declaration by the applicant stating that the applicant has read the information statement published under section 25I; and (ii) any other prescribed information; and (iii) the prescribed application fee.

S. 25D inserted by No. 66/2004 s. 8.

25D Further particulars The Building Practitioners Board may ask an applicant under section 25C to give it any more information that it reasonably requires to determine the application and may refuse the application if the applicant does not comply with the request within a reasonable time. 25E Decision on application for certificate of consent (1) The Building Practitioners Board must issue a certificate of consent for domestic building work if it is satisfied that— (a) the applicant has complied with sections 25C and 25D; and (b) the applicant is the owner of the land on which the domestic building work is to be carried out or the application is authorised

S. 25E inserted by No. 66/2004 s. 8.

47

s. 25E

under section 25F; and (c) the application relates to the carrying out of domestic building work in relation to, or ancillary to, a single dwelling; and (d) the applicant resides and will continue to reside, or intends to reside, in the dwelling; and (e) the applicant has not been issued with a building permit for the carrying out of domestic building work by the applicant as builder on land owned by the applicant or a related body in the previous 3 years other than in relation to, or ancillary to, the dwelling on the land to which the application relates; and (f) if the applicant co-owns the land to which the application relates with another person, a building permit has not been issued to that person for the carrying out of domestic building work by that person as builder on land owned by that person in the previous 3 years other than in relation to, or ancillary to, the dwelling on the land to which the application relates; and (g) if the applicant was a co-owner of land (other than the land to which the application relates) with another person in the previous 3 years, a building permit has not been issued to that person for the carrying out of domestic building work by that person as builder on that land in that 3 year period; and (h) the applicant is not in the business of building. (2) In subsection (1) a reference to a period of 3 years does not include any period before the commencement of section 8 of the Building

48

s. 25F

(Amendment) Act 2004. (3) Subject to subsection (4), the Board must refuse to issue a certificate of consent if the requirements of subsection (1) are not met. (4) The Board may exempt an applicant from the requirement in subsection (1)(e), (1)(f) or (1) (g) if the Board determines that special circumstances exist. (5) For the purposes of subsection (4), the Board may determine that special circumstances exist if it is satisfied that— (a) the application arises from a substantial change in the circumstances of the applicant; or (b) the applicant would suffer hardship if the application were refused. (6) In this section related body means a body corporate of which the applicant is a director or the trustees of a trust of which the applicant is a beneficiary.
S. 25F inserted by No. 66/2004 s. 8.

25F Applications in relation to land owned by related bodies (1) An applicant for a certificate of consent in respect of domestic building work is not required to be the owner of the land on which the work is to be carried out if— (a) the land is owned by a body corporate; and (b) the applicant is a director of the body corporate; and (c) the body corporate has in writing authorised the applicant to make the application and to carry out the work. (2) An applicant for a certificate of consent in respect of domestic building work is not required to be the

49

s. 25G

owner of the land on which the work is to be carried out if— (a) the land is the subject of a trust; and (b) the applicant is a beneficiary of the trust; and (c) the trustees of the trust have each in writing authorised the applicant to make the application and to carry out the work. 25G Certificate of consent A certificate of consent issued under this Division — (a) must contain the prescribed information; and (b) expires 3 years after the date of issue. 25H Register of certificates (1) The Registrar of the Building Practitioners Board must keep a register of certificates of consent issued under this Division. (2) The register must be kept in accordance with the regulations. 25I Building Commission to publish information statement (1) The Commission, after consulting with the Director of Consumer Affairs Victoria, may publish an information statement setting out information in relation to this Act, the building regulations, the Domestic Building Contracts Act 1995 and the regulations under that Act that the Commission considers appropriate to provide to applicants for certificates of consent. (2) The Commission, after consulting with the Director of Consumer Affairs Victoria, may publish a statement amending or replacing a statement published under subsection (1). (3) The information statement and any amending or
S. 25I inserted by No. 66/2004 s. 8. S. 25H inserted by No. 66/2004 s. 8. S. 25G inserted by No. 66/2004 s. 8.

50

s. 26

replacement statement must be published in the Government Gazette. Division 4—Special provisions
S. 26 substituted by No. 34/1997 s. 5.

26 Prescribed places of public entertainment An application for a building permit for a place of public entertainment prescribed or in a class prescribed for the purposes of this section must be made to the Commission. * * * * *

S. 27 repealed by No. 91/1995 s. 138.

28 Historic buildings and special buildings (1) Despite section 24, the relevant building surveyor may issue a building permit for the carrying out of building work that does not comply with the building regulations if the work is to be carried out on, or in connection with—
S. 28(1)(a) substituted by No. 93/1995 s. 218(1) (Sch. 2 item 1.1). S. 28(1)(b) repealed by No. 28/2000 s. 14(1).

(a) a building included on the Heritage Register established under the Heritage Act 1995;

*

*

*

*

*

(2) The building permit may be issued to enable the carrying out of work appropriate to the style, manner of construction and materials of the building. (3) In deciding an application for a building permit in respect of a building to which subsection (1)

51

s. 29

applies, the relevant building surveyor must take into account— (a) the structural adequacy of the building; and (b) the requirements necessary to make reasonable provision for the amenity of the building and the safety and health of people using the building. (4) The consent and report of the Executive Director under the Heritage Act 1995 must be obtained to an application to demolish or alter a building which is on a register established under that Act. 29 Subdivision (1) Despite anything to the contrary in this Act or in any other Act or law, the relevant building surveyor may refuse to issue a building permit for the construction of a building if— (a) the owner from time to time of the land could dispose of part of that land without proceeding under the Subdivision Act 1988; and (b) the relevant building surveyor is satisfied that if part of the land were disposed of before the council considered the matter, the building to be constructed would not comply with the provisions of the relevant planning scheme or of any regulation made under this Act or of any local law made under powers conferred by the regulations made under this Act with respect to— (i) the dimensions or area of the land; or (ii) the proportion of the area of land on which buildings are to be constructed; or (iii) the provision of open space on the land.
S. 28(4) inserted by No. 28/2000 s. 14(2).

52

s. 29A

(2) The relevant building surveyor must not, under subsection (1), refuse a building permit for the construction of a building on the sole ground that the owner may without notice to the council dispose of part of the land to the Crown or to a public statutory body constituted under a law of the State or of the Commonwealth.
S. 29A inserted by No. 28/2000 s. 15.

29A Application for building permit for demolition (1) If an application is made to the relevant building surveyor under this Act for a building permit for the demolition of a building on land and— (a) the demolition and all other demolitions completed or permitted in respect of the building within the period of 3 years immediately preceding the date of the application would together amount to the demolition of more than one half of the volume of the building as it existed at the date of the first building permit to be issued within that period for the demolition of any part of the building; or (b) the demolition is of any part of the facade of a building— then the report and consent of the responsible authority under the Planning and Environment Act 1987 for the planning scheme relating to that land must be obtained to that application.

(2) The responsible authority as reporting authority must refuse its consent to an application to which subsection (1) applies if a planning permit is required for the demolition and has not been obtained but must not otherwise refuse its consent to the application.

53

s. 29B

(3) In this section— facade means— (a) an external wall, including any verandah, balcony or balustrade or architectural feature attached to or forming part of an external wall; or (b) a part of a roof; or (c) a chimney— that faces a street and at least part of which is visible from the street it faces; street includes road, highway, carriageway, square and court. 29B Suspension of demolition permit pending amendment of planning scheme (1) If— (a) the report and consent of the responsible authority as reporting authority under section 29A has been sought in relation to an application for a building permit; and (b) during the prescribed time referred to in clause 6A(2) of Schedule 2— (i) an application is made to the Minister for an exemption under section 20(1) of the Planning and Environment Act 1987 in respect of an amendment to the planning scheme affecting the land; or (ii) if a request is made to the Minister to prepare an amendment to a planning scheme affecting the land and to exempt himself or herself under section 20(4) of the Planning and Environment Act 1987 from certain requirements in respect of that amendment—
S. 29B inserted by No. 28/2000 s. 15.

54

s. 29B

the responsible authority must give written notice without delay to the relevant building surveyor of the application or request. (2) On receipt of a notice under subsection (1) the relevant building surveyor must suspend consideration of the application for the building permit. (3) The responsible authority must give written notice to the relevant building surveyor without delay of — (a) the withdrawal of an application or request referred to in subsection (1)(b); or (b) the refusal of an application or request referred to in subsection (1)(b); or (c) the coming into operation of an amendment referred to in subsection (1)(b); or (d) the lapsing of an amendment referred to in subsection (1)(b). (4) The prescribed time within which the relevant building surveyor must decide an application for a permit— (a) ceases to run at the time that notice affecting the application is received by the relevant building surveyor under subsection (1); and

(b) recommences to run only when notice affecting the application is received by the relevant building surveyor under subsection (3). (5) If a notice of an amendment has been given to the relevant building surveyor under subsection (3)(c) the relevant building surveyor must, in considering under section 24 whether a building

55

s. 31

s. 30

permit is consistent with any relevant planning permit, consider the requirements of the relevant planning scheme as amended by the amendment. Division 5—Register and records 30 Relevant building surveyor to give copies of permits and documents to council (1) The relevant building surveyor, within 7 days after issuing any building permit under this Part, must give to the relevant council a copy of that permit and any plans and other documents lodged with the application for the permit. P 10 penalty units.
S. 30(1A) inserted by No. 34/1997 s. 6(1). S. 30 amended by No. 71/1995 s. 4(a).

(1A) In addition to the requirements of subsection (1), the relevant building surveyor, within the relevant prescribed time, must give to the relevant council a copy of any other prescribed documents relating to the application for the building permit or the permit. P 10 penalty units. (2) Any documents lodged with the relevant council under subsection (1) or (1A) must be accompanied by the appropriate prescribed lodgement fee (if any) paid to the relevant building surveyor under clause 1 of Schedule 2.

31 Register of building permits (1) A council must keep a register of all building permits given to it under this Division. (2) A council must make the register available for inspection by any person during normal office hours.

56

32 Keeping of records A council must keep all documents given to it under this Division for the prescribed period and in the prescribed manner.
S. 32A inserted by No. 35/2006 s. 11.

32A Council to notify VicUrban of issue of building permit (1) This section applies if— (a) a council has under section 30(1) been given a copy of a building permit issued for building work to be carried out on a property situated in a project area within the meaning of the Victorian Urban Development Authority Act 2003; and (b) a resolution is in force under Division 5A of Part 3 of that Act levying a general development charge or infrastructure recovery charge in respect of that project area. (2) The council must within 14 days after being given the copy of the building permit— (a) notify the Victorian Urban Development Authority in writing in accordance with subsection (3); and

(b) provide the Victorian Urban Development Authority with a copy of any relevant planning permit that it holds that authorises both the construction of the buildings to which the building work relates and a subdivision of the land on which the building work is to be carried out. (3) The notice must set out the following information

57

s. 32A

— (a) the name of the applicant for the permit; (b) the address of the property in respect of which the permit was issued; (c) the nature of the building work for which the permit was issued; (d) the cost of the building work calculated in accordance with section 201; (e) the information referred to in paragraphs (c) and (d) in respect of all other building permits issued for the same land in the previous 3 years. __________________

58

s. 33

PART 4—INSPECTION OF BUILDING WORK

33 Notification during building work (1) A person who is in charge of the carrying out of building work for which a permit has been issued under Part 3, must notify the relevant building surveyor without delay after completion of each mandatory notification stage of that work. P 10 penalty units. (2) A person who is carrying out building work for which a permit has been issued under Part 3 must stop carrying out that work or any part of that work on completion of a mandatory notification stage if directed to do so by the relevant building surveyor. P 10 penalty units. 34 Inspections at mandatory notification stages On being notified that a mandatory notification stage has been completed, the relevant building surveyor must cause the building work concerned to be inspected. 35 Inspection of building work—general powers The relevant building surveyor may cause building work for which a permit has been issued under Part 3 to be inspected at any time whether or not a mandatory notification stage has been completed. 36 Powers in relation to inspections The relevant building surveyor may cause any building work to be demolished, opened or cut into or tested if this is reasonably required to facilitate the carrying out of an inspection for the purposes of this Act or the regulations.

59

s. 37

37 Directions as to work (1) After inspecting building work, the relevant building surveyor or a person acting on behalf of the relevant building surveyor may direct the person who is in charge of carrying out the building work to carry out work so that the building work complies fully or substantially with the building permit issued in respect of the work, this Act or the building regulations, as the case requires. (2) If a person fails to comply with a direction under this section, the relevant building surveyor may cause a building notice to be issued under Part 8 or may take any other action permitted by this Act or the building regulations. (3) A direction may be given orally or in writing. (4) If a direction is given orally, the person who gave the direction must confirm it in writing without delay to the person to whom the direction was given. 38 Certificate of final inspection (1) The relevant building surveyor must issue a certificate of final inspection on completion of the inspection following the final mandatory notification stage of building work if— (a) an occupancy permit is not required for the building work; and (b) all directions given under this Part in respect of the building work have been complied with. (2) A certificate of final inspection is not evidence that the building or building work concerned complies with this Act or the building regulations. _______________

60

s. 39

PART 5—OCCUPATION OF BUILDINGS AND PLACES OF PUBLIC ENTERTAINMENT

Division 1—Occupancy permits (building work) 39 Occupancy permit must be obtained (1) If a building permit states that an occupancy permit is required for the whole of a building, a person must not occupy that building unless the occupancy permit has been issued under this Division for the building. P 100 penalty units, in the case of a natural person. 500 penalty units, in the case of a body corporate. (2) If a building permit states that an occupancy permit is required for part of a building, a person must not occupy that part of the building unless the occupancy permit has been issued under this Division for that part of the building. P 100 penalty units, in the case of a natural person. 500 penalty units, in the case of a body corporate.
S. 40 amended by No. 34/1997 s. 7(1).

40 Occupation must be in accordance with permit (1) A person must not occupy a building in contravention of the current occupancy permit or permits issued under this Division for the building. P 100 penalty units, in the case of a natural person. 500 penalty units, in the case of a body corporate.

61

s. 41

(2) Subsection (1) does not apply to a person who occupies a building in accordance with an approval given under Division 3. 41 Applications for occupancy permits An application for an occupancy permit required by a building permit must be made to the relevant building surveyor— (a) by or on behalf of the owner of the building or the owner of the land, in or on which the building work has been carried out; or (b) if the land in or on which the building work has been carried out is a lot of a kind referred to in section 9AA(1) of the Sale of Land Act 1962, by the purchaser under a contract for the sale of that lot. 42 Schedule 2 to apply Schedule 2 applies in relation to an application for an occupancy permit under this Division. 43 Decision on application for occupancy permit (1) The relevant building surveyor must decide an application for an occupancy permit under this Division by— (a) issuing the permit; or (b) issuing the permit with conditions; or (c) refusing the permit. (2) The regulations may prescribe a time within which the relevant building surveyor must decide an application for an occupancy permit. (3) The relevant building surveyor is deemed to have refused an occupancy permit if the application is not decided within the prescribed time. 44 Refusal of occupancy permit

S. 40(2) inserted by No. 34/1997 s. 7(2).

S. 44 substituted by No. 75/1998 s. 6.

62

s. 44

The relevant building surveyor must not issue an occupancy permit under this Division— (a) unless the building, or the part of the building, to which the permit applies is suitable for occupation; and (b) if plumbing work for which section 221ZH required the issue of a compliance certificate was carried out in conjunction with the building work on the building or part of the building in respect of which the permit is sought, unless the building surveyor has seen a copy of the compliance certificate. 45 Form of occupancy permit An occupancy permit under this Division must specify— (a) the prescribed classification of the building or part of a building to which it applies; and (b) the proposed use of the building or part of a building; and (c) the maximum permissible live load within the building or part of a building, if applicable; and (d) the maximum number of people to be accommodated within the building or part of a building, as determined in accordance with the regulations; and (e) any conditions to which it is subject. 46 Effect of occupancy permit (1) An occupancy permit under this Division is evidence that the building or part of a building to which it applies is suitable for occupation. (2) An occupancy permit under this Division is not evidence that the building or part of a building to which it applies complies with this Act or the

63

s. 47

building regulations. 47 Reporting authority to be notified of occupancy permit If the relevant building surveyor issues an occupancy permit under this Division which differs from or fails to implement the recommendations in a reporting authority's report under Schedule 2 on the application for the permit, the relevant building surveyor must notify the reporting authority without delay of the permit and give the reporting authority a copy of the permit. 48 Reasons for refusal to be given The relevant building surveyor must notify an applicant under this Division for an occupancy permit in writing without delay of the refusal of the permit and the reasons for the refusal. Division 2—Occupancy permits (places of public entertainment) 49 Public entertainment not to be conducted at place without occupancy permit A person must not conduct7 a public entertainment in a place of public entertainment unless an occupancy permit has been issued under this Division which permits its use for the entertainment. P 100 penalty units, in the case of a natural person. 500 penalty units, in the case of a body corporate. 50 Place not to be used for public entertainment without occupancy permit

64

s. 50

The owner or occupier of a place of public entertainment must not, for fee or reward, permit the place to be used for the purpose of providing public entertainment unless an occupancy permit has been issued under this Division which permits its use for the entertainment. P 100 penalty units, in the case of a natural person. 500 penalty units, in the case of a body corporate.

51 Use of place of public entertainment must be in accordance with permit The owner or occupier of a place of public entertainment (other than a prescribed temporary structure) must not permit the place to be used for the purpose of providing public entertainment in contravention of the occupancy permit permitting its use for the entertainment. P 100 penalty units, in the case of a natural person. 500 penalty units, in the case of a body corporate.

52 Use of prescribed temporary structure must be in accordance with permit The owner, occupier, lessee or a hirer of a prescribed temporary structure must not permit the structure to be used for the purpose of providing public entertainment in contravention of the occupancy permit permitting its use for the entertainment. P 100 penalty units, in the case of a natural person. 500 penalty units, in the case of a body corporate.

53 Applications for occupancy permits

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s. 53

(1) An application for an occupancy permit under this Division (other than an occupancy permit referred to in subsection (2)) may be made to a municipal building surveyor or a private building surveyor appointed under Part 6 by or on behalf of the owner of the place of public entertainment concerned. (2) An application for an occupancy permit under this Division for a prescribed temporary structure or for a place of public entertainment prescribed or in a class prescribed for the purposes of this section may be made to the Commission by or on behalf of the owner of the place of public entertainment concerned8. (3) An application can only be made to a private building surveyor under this Division in conjunction with an application for an occupancy permit under Division 1 in respect of the place of public entertainment concerned. 54 Schedule 2 to apply Schedule 2 applies in relation to an application for an occupancy permit under this Division. 55 Refusal of occupancy permit The relevant building surveyor must not issue an occupancy permit under this Division unless the place to which the permit applies is suitable for occupation for the public entertainment or class of public entertainment for which the permit is sought.

56 Decision on application for occupancy permit

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s. 56

(1) The relevant building surveyor must decide an application for an occupancy permit under this Division by— (a) issuing the permit; or (b) issuing the permit with conditions; or (c) refusing the permit. (2) The regulations may prescribe a time within which the relevant building surveyor must decide an application for an occupancy permit. (3) The relevant building surveyor is deemed to have refused an occupancy permit if the application is not decided within the prescribed time. 57 Prescribed temporary structures—special provisions (1) An occupancy permit for a prescribed temporary structure may be issued on condition that— (a) the siting of the temporary structure in any municipal district is subject to the approval of the municipal building surveyor of that district; and (b) the erection of the temporary structure is carried out by registered building practitioners. (2) More than one occupancy permit can be issued for a prescribed temporary structure but each occupancy permit must not be issued for a period longer than 5 years.

58 Effect of occupancy permit

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s. 58

(1) An occupancy permit under this Division is evidence that the place to which it applies is suitable for occupation for the purpose of the public entertainment or class of public entertainment for which it was issued. (2) An occupancy permit under this Division is not evidence that a place of public entertainment complies with this Act or the building regulations. 59 Form of occupancy permit (1) An occupancy permit under this Division must specify— (a) the public entertainment or class of public entertainment to which it applies; and (b) any conditions to which it is subject; and (c) the period of operation of the permit. (2) If an occupancy permit is required under Division 1 and this Division in respect of a building or part of a building (other than a prescribed temporary structure), the relevant building surveyor may issue a combined occupancy permit if the requirements of both Divisions have been met. 60 Reporting authority to be notified of occupancy permit If the relevant building surveyor issues an occupancy permit under this Division which differs from or fails to implement the recommendations in a reporting authority's report under Schedule 2 on the application for the permit, the relevant building surveyor must notify the reporting authority without delay of the permit and give the reporting authority a copy of the permit. 61 Owner to notify others of occupancy permit

68

s. 61

(1) The owner of a building (other than a prescribed temporary structure) must notify an occupier of the building, within 7 days after the occupier first enters into occupation of the building or within 7 days after an occupancy permit is issued in respect of the building (whichever is the later), of any occupancy permit in force under this Division in respect of the building. P 10 penalty units. (2) The owner of a prescribed temporary structure must notify the occupier, lessee or hirer of the structure within 7 days after the occupier, lessee or hirer enters into occupation of, or leases or hires the temporary structure or within 7 days after an occupancy permit is issued in respect of the structure (whichever is the later), of any occupancy permit in force under this Division in respect of the structure. P 10 penalty units. 62 Reasons for refusal to be given If the relevant building surveyor refuses an occupancy permit under this Division, the relevant building surveyor must notify the applicant for the permit in writing without delay of the refusal of the permit and the reasons for the refusal. 63 Inspection of places of public entertainment (1) The municipal building surveyor of a municipal district may cause any place of public entertainment in that municipal district for which an occupancy permit has been issued under this Division to be inspected from time to time to determine whether or not the permit is being complied with. (2) The Commission may cause any place of public entertainment for which an occupancy permit has been issued by the Commission under this 69

s. 64

Division to be inspected from time to time to determine whether or not the permit is being complied with. Division 3—Temporary occupation of buildings 64 Temporary occupation of buildings
S. 64 amended by No. 71/1995 s. 5(a)(b).

(1) A person may, with the approval of a municipal building surveyor or a private building surveyor appointed under Part 6, occupy on a temporary basis a building for which there is not or could not be issued an occupancy permit appropriate to the use of the building. (2) An approval cannot be given under this section for a use of a building or part of a building if a building permit requires an occupancy permit to be issued for that use of the building or part of a building. 65 Who may apply for approval? An application for approval under this Division may be made to the relevant building surveyor by or on behalf of the owner of the building concerned.

S. 64(1) amended by No. 34/1997 s. 8.

S. 64(2) inserted by No. 71/1995 s. 5(c).

66 Form of application An application must—

70

s. 66

(a) be in a form approved by the relevant building surveyor; and (b) be accompanied by the fees— (i) determined by the council in accordance with the Local Government Act 1989; or (ii) in the case of an application to a private building surveyor, determined by the private building surveyor. 67 Determination of applications The relevant building surveyor must decide the application for approval to occupy a building on a temporary basis by— (a) issuing the approval; or (b) issuing the approval with conditions; or (c) refusing the approval. 68 Form of approval An approval under this section must— (a) be in writing; and (b) specify any conditions to which it is subject; and (c) specify the period for which it applies. 69 Reasons for refusal to be given The relevant building surveyor must notify an applicant in writing of the refusal of approval to occupy a building on a temporary basis and the reasons for the refusal.

Division 4—Amendment and cancellation of permits and approvals

71

s. 70

70 Amendment of permit or approval (1) A municipal building surveyor may amend a permit or approval issued under this Part— (a) on an application by or on behalf of the owner of the building or land concerned; or (b) in any other case, if the amendment is necessary in the public interest. (2) Sections 42 to 48 apply (with any necessary modifications) in relation to an application to amend an occupancy permit issued under Division 1 as if it were an application for an occupancy permit under that Division. (3) Sections 54 to 62 apply (with any necessary modifications) in relation to an application to amend an occupancy permit issued under Division 2 as if it were an application for an occupancy permit under that Division. (4) Sections 66 to 69 apply (with any necessary modifications) in relation to an application to amend an approval given under Division 3 as if it were an application for approval under that Division. 71 Cancellation of permit or approval if fraud or misrepresentation The relevant building surveyor may cancel a permit or approval issued by the relevant building surveyor under this Part if the permit or approval was obtained by fraud or misrepresentation.

72 Cancellation of occupancy permit on other grounds A municipal building surveyor may cancel an

72

s. 72

occupancy permit issued under Division 1 if— (a) the building or the part of a building to which the permit relates is no longer suitable for occupation for the classification stated on the permit; or (b) the use of the building or part of the building has changed from the use stated on the permit; or (c) the strength of the building has become less than required to carry the loads stated on the permit. Division 5—Register and records
S. 73 amended by No. 71/1995 s. 6(a).

73 Relevant building surveyor to give copies of documents to council (1) The relevant building surveyor, within 7 days after issuing any occupancy permit or temporary approval or amending any permit or approval under this Part, must give to the relevant council a copy of that permit or approval or amendment and any plans and other documents lodged with the application for the permit or approval or amendment. P 10 penalty units. (1A) In addition to the requirements of subsection (1), the relevant building surveyor, within the relevant prescribed time, must give to the relevant council a copy of any other prescribed documents relating to the application for the occupancy permit or temporary approval or the permit or approval. P 10 penalty units. (2) Any documents lodged with the relevant council under subsection (1) or (1A) must be accompanied by the appropriate prescribed lodgement fee (if any) paid to the relevant building surveyor

under clause 1 of Schedule 2. 74 Register of occupancy permits and temporary approvals (1) A council must keep a register of all occupancy permits and temporary approvals and amendments given to it under this Division. (2) A council must make the register available for inspection during normal office hours by any person. 75 Keeping of records A council must keep all documents given to it under this Division for the prescribed period and in the prescribed manner. _______________

76 Functions of private building surveyor A private building surveyor may be appointed to carry out all or any of the following functions under this Act— (a) the issuing of building permits; (b) the carrying out of inspections of buildings and building work under Part 4; (c) the issuing of occupancy permits and temporary approvals under Part 5. 77 Additional functions In addition to the functions set out in section 76, a private building surveyor may carry out any other functions conferred on private building surveyors by this Act or the regulations. 78 When may a private building surveyor be appointed? (1) Subject to this Part, a person who is entitled to apply for a building permit, occupancy permit or temporary approval under this Act in respect of a building or building work, may appoint a private building surveyor to carry out the functions set out in section 76 in respect of that building or building work.

(2) Except as provided in this Part, a person must not

77

s. 79

appoint a private building surveyor to complete any functions set out in section 76 in respect of a building or building work if another private building surveyor or a municipal building surveyor has already commenced to carry out functions set out in that section in respect of that building or building work. P 100 penalty units, in the case of a natural person. 500 penalty units, in the case of a body corporate. (3) Subject to this Part, on and from the acceptance of an appointment under this Part in respect of a building or building work, a private building surveyor is responsible for carrying out the functions set out in section 76 in respect of that building or building work. (4) Despite the terms of an appointment under this section, a private building surveyor, in carrying out any functions set out in section 76, must comply with this Act and the regulations. 79 Circumstances in which private building surveyor may not act (1) Subject to subsection (2), a private building surveyor must not accept an appointment to carry out any functions set out in section 76 in relation to a building or building work if the private building surveyor— (a) prepared the design of the building or building work; or (b) is, or within the prescribed period was, employed or engaged by the person or body which prepared the design of the building or building work other than an appointment to carry out a function set out in section 76; or

78

s. 79

(c) has a direct or indirect pecuniary interest in the body which prepared the design of the building or building work; or (d) has a direct or indirect pecuniary interest in the building or building work or in any body carrying out the building work. P 100 penalty units. (2) The Commission, on the application of a private building surveyor, may exempt the private building surveyor from all or any of the requirements of subsection (1) in respect of any particular building or building work. An exemption must be in writing.
S. 79(2A) inserted by No. 71/1995 s. 7(1).

(2A) A private building surveyor must not accept an appointment to carry out any functions set out in section 76 in relation to a building or building work if the private building surveyor— (a) is also an officer or employee of a council and the building is situated in or the building work is to be carried out in the municipal district of that council; or (b) is engaged by a council under section 215 to carry out the functions of municipal building surveyor and the building is situated in or the building work is to be carried out in that municipal district. P 100 penalty units. (3) Except as provided in this Part, a private building surveyor must not accept an appointment to complete any functions set out in section 76 in respect of a building or building work if another private building surveyor or a municipal building surveyor has already commenced to carry out functions set out in that section in respect of that building or building work.

79

s. 80

80 Private building surveyor to notify council A private building surveyor must, within 7 days after accepting an appointment under this Part, notify the relevant council in writing of the appointment and the building or building work in respect of which the private building surveyor is appointed. 81 Termination of appointment (1) Subject to subsection (3), the appointment of a private building surveyor under this Part cannot be terminated without the written consent of the Commission. (2) If building work in respect of which a private building surveyor is appointed is terminated before commencement or completion, the owner of the land on which the building work was or was to be carried out must notify the Commission and the relevant municipal council of the termination of the building work. (3) On receipt by the Commission of a notice under subsection (2), the appointment of the private building surveyor is deemed to be terminated. (4) If the appointment of a private building surveyor is terminated under subsection (3), a private building surveyor or municipal building surveyor must not complete the first private building surveyor's functions in respect of the building work without the written consent of the Commission. (5) This section applies despite anything to the contrary in the terms of the appointment or in any other Act or rule of law.

80

s. 82

82 Directions of Commission (1) If— (a) the Commission consents to the termination of an appointment under section 81(1) and a new private building surveyor or a municipal building surveyor is to complete the private building surveyor's functions; or (b) the appointment of a private building surveyor has been terminated under section 81(3) and the Commission consents to a new private building surveyor or a municipal building surveyor completing the private building surveyor's functions— the Commission may give such written directions as it considers appropriate to facilitate the transfer of the private building surveyor's functions to that other private building surveyor or municipal building surveyor. (2) The private building surveyor whose appointment was terminated under section 81, the private building surveyor or municipal building surveyor to whom the functions are to be transferred and the person who appointed the private building surveyor whose appointment was terminated must comply with a direction under subsection (1). P 100 penalty units, in the case of a natural person. 500 penalty units, in the case of a body corporate. (3) A direction under subsection (1) has effect despite anything to the contrary in the terms of appointment of the first private building surveyor or the private building surveyor or municipal building surveyor to whom the functions are transferred.

81

s. 83

83 Effect of transfer of functions If the functions of a private building surveyor are transferred to a second building surveyor under this Part, then in respect of any period on or after the date of transfer to the second building surveyor, anything done by the private building surveyor in respect of the building work concerned is, for the purpose only of carrying out the second building surveyor's functions under this Act and the regulations, deemed to have been done by the second building surveyor. _______________

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s. 84

PART 7—PROTECTION OF ADJOINING PROPERTY

84 Notice of building work to be given (1) An owner who is required by the building regulations to carry out protection work in respect of an adjoining property before or during the carrying out of building work for which a building permit is required must, before commencing the building work, serve on the owner of the adjoining property and the relevant building surveyor notice of the proposed building work.
S. 84(2) substituted b y No. 66/2004 s. 9(1).

(2) The notice must include— (a) prescribed details of the proposed building work as at the date of the notice; and (b) prescribed details of the proposed protection work setting out the nature, location, time and duration of the protection work; and (c) any other prescribed information. 85 Adjoining owner must respond to notice (1) The adjoining owner, not later than 14 days after service on the adjoining owner of the notice of proposed building work, must—

(a) give to the owner a notice agreeing to the proposed protection work; or (b) give to the owner and the relevant building surveyor a notice— (i) disagreeing with the proposed protection work; or (ii) requiring more information to be given to enable the proposal to be considered by the relevant building surveyor. (2) Subject to sections 90 and 91, an adjoining owner

83

s. 86

who fails to give a notice under subsection (1) within the required time is deemed to have agreed to the proposed protection work. (3) A notice given under this section must contain the prescribed information. 86 Effect of agreement If the adjoining owner agrees or is deemed to have agreed to the proposed protection work, the owner may proceed to carry out the protection work after obtaining any necessary permits or approvals required by this or any other Act or the building regulations. 87 Effect of disagreement or request for further information (1) On receipt of a notice under section 85(1)(b), the relevant building surveyor must examine the proposal for protection work and determine the appropriateness or otherwise of the work. (2) If the relevant building surveyor considers it appropriate in the case of a notice under section 85(1)(b)(ii), the relevant building surveyor — (a) may ask the owner to give more information before making a determination under subsection (1); and (b) if more information is requested, must make a copy of that information available to the adjoining owner. (3) In determining a matter under this section, the relevant building surveyor may make any inquiries he or she thinks fit but is not required to give any person a hearing. (4) The relevant building surveyor must give the
S. 85(3) inserted by No. 66/2004 s. 9(3).

84

s. 88

owner and the adjoining owner notice in writing of a determination under this section. 88 Work not to be carried out until protection requirements met (1) An owner who is required by the building regulations to carry out protection work in respect of an adjoining property must not carry out any building work giving rise to that requirement until — (a) the adjoining owner agrees or is deemed to agree to the protection work; or (b) the matter is determined by the relevant building surveyor under this Part; or (c) in the case of an appeal to the Building Appeals Board in relation to the matter, the matter is determined by the Building Appeals Board. P 100 penalty units, in the case of a natural person. 500 penalty units, in the case of a body corporate. (2) The owner must carry out any protection work required by the building regulations— (a) if the adjoining owner has agreed to the protection work, in accordance with that agreement; or (b) if the relevant building surveyor has made a determination under this Part in respect of the protection work, in accordance with that determination; or

(c) if the Building Appeals Board has made a

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s. 89

determination under Part 10 in respect of the protection work, in accordance with that determination. P 100 penalty units, in the case of a natural person. 500 penalty units, in the case of a body corporate. 89 Emergency procedures (1) The Commission, on the application of an owner or adjoining owner may declare that emergency protection work is required in respect of a particular adjoining property. (2) Sections 84 to 88 do not apply to any emergency protection work to be carried out in accordance with a declaration under subsection (1). (3) The owner must carry out emergency protection work in accordance with— (a) the declaration under subsection (1); or (b) if the Building Appeals Board has made a determination under Part 10 in respect of the protection work, in accordance with that determination. P 100 penalty units, in the case of a natural person. 500 penalty units, in the case of a body corporate.

90 Absent or incapable owners

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s. 90

(1) If an owner is required under the building regulations to carry out protection work in respect of an adjoining property but the adjoining owner cannot be found or is incapable of acting, the owner may apply to the Minister for the appointment of a suitable person to act as agent for the adjoining owner during the adjoining owner's absence or incapacity. (2) An application must be in writing and set out the circumstances of the case and the grounds of the application.
S. 90(3) amended by No. 52/1998 s. 311(Sch. 1 item 10.2).

(3) Before making an application under this section, the owner must make all reasonable inquiries to determine whether any person has been appointed as administrator of the estate of the adjoining owner under the Guardianship and Administration Act 1986. 91 Appointment of agent for adjoining owner (1) If the Minister is satisfied— (a) that the adjoining owner cannot, after reasonable inquiry, be found or that the adjoining owner is incapable of acting in the matter of any agreement or disagreement; and (b) that the owner has made all reasonable inquiries under section 90(3)— the Minister may, in writing, appoint a suitable person to act as the agent of and in the place of the adjoining owner for the purposes of this Part. (2) The appointment is to be subject to such terms and conditions as to the discharge of the person's duties as agent and as to the payment of fees and otherwise as the Minister thinks fit. (3) The Minister must cause an agent appointed under this section to be notified in writing of—

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s. 92

(a) the appointment; and (b) the nature of the agent's duties; and (c) the fees to be paid to the agent by the owner; and (d) any other terms and conditions to which the appointment is subject. (4) An adjoining owner may revoke the appointment of an agent under this section but that revocation does not affect the validity of anything done by the agent under the appointment before the revocation. 92 Adjoining owner may inspect plans At any time after notice of intention to commence the carrying out of building work is given under this Part, the relevant building surveyor must make available to the adjoining owner, on request, for inspection, without charge, any plans, drawings and specifications of the proposed building work in the possession or control of the relevant building surveyor. 93 Owner to arrange insurance cover (1) Before any protection work is commenced in respect of an adjoining property, an owner must ensure that a contract of insurance is in force, in accordance with this section, against— (a) damage by the proposed protection work to the adjoining property; and
S. 93(1) substituted by No. 68/2001 s. 7(1).

(b) any liabilities likely to be incurred to adjoining occupiers and members of the public during the carrying out of the building

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s. 93

work and for a period of 12 months after that building work is completed. P 100 penalty units, in the case of a natural person. 500 penalty units, in the case of a body corporate. (2) The contract of insurance must be entered into with an insurer and for an amount— (a) agreed to by the owner and the adjoining owner; or (b) in the event of a dispute, determined by the Building Appeals Board under Part 10.
S. 93(3) amended by No. 68/2001 s. 7(2)(3).

(3) The owner must lodge a copy of the contract of insurance with the adjoining owner before the commencement of the protection work. P 10 penalty units, in the case of a natural person. 50 penalty units, in the case of a body corporate.

S. 93(4) substituted by No. 68/2001 s. 7(4).

(4) The owner must ensure that the contract of insurance is renewed or extended as often as may be necessary during the carrying out of the building work and for 12 months after that work is completed. P 100 penalty units, in the case of a natural person. 500 penalty units, in the case of a body corporate.

S. 93(5) inserted by No. 68/2001 s. 7(4).

(5) The owner must lodge a copy of a document evidencing the renewal or extension of the contract of insurance with the adjoining owner as

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s. 94

soon as it is practicable to do so after the renewal or extension. P 10 penalty units, in the case of a natural person. 50 penalty units, in the case of a body corporate. 94 Survey of adjoining property (1) Before the commencement of any protection work, the owner or the owner's agent in company with the adjoining owner or the adjoining owner's agent, must— (a) make a full and adequate survey of the adjoining property; and (b) record in writing or by any other means any of the parties desires all existing cracks and defects in the adjoining property. (2) The record must be signed or otherwise acknowledged as an agreed record of the condition of the adjoining property before the commencement of any protection work. (3) The record is admissible in evidence in any proceedings relating to the adjoining property and is evidence of the condition of the adjoining property at the time the record was made.

95 Entry on adjoining property (1) An owner or the agent of an owner may enter

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s. 95

between the hours of 8 a.m. and 6 p.m. on, over, under or into the air space above any adjoining property— (a) to carry out any survey under section 94; or (b) to carry out the protection work required by the building regulations and agreed or deemed to be agreed to or determined under this Part. (2) The owner must give the adjoining owner not less than 24 hours' notice, or such other notice as may be agreed between the parties, before the owner or the owner's agent enters an adjoining property under subsection (1). P 10 penalty units. (3) In the course of carrying out any protection work under this Part, an owner may without doing any unnecessary damage remove any furniture or fittings in the adjoining property which obstruct the carrying out of the work. 96 Adjoining owner and adjoining occupier not to obstruct owner If notice of entry has been given in accordance with section 95(2), the adjoining owner or the adjoining occupier must not— (a) refuse to admit the owner or the owner's agents to the adjoining property in accordance with the notice for the purpose of carrying out the survey or protection work; or

(b) obstruct or hinder the owner or the owner's agents in carrying out the survey or protection work on, over, under or in the air

91

s. 99

s. 97

space above the adjoining property. P 10 penalty units and in the case of a continuing offence an additional penalty of 1 penalty unit for every day that the refusal, obstruction, or hindrance continues after the day appointed for entry in the notice.
S. 97(1) amended by No. 34/1997 s. 10.

97 Expenses of adjoining owner (1) The owner must pay to the adjoining owner all costs and expenses necessarily incurred by the adjoining owner in assessing proposed protection work and in supervising the carrying out of protection work in respect of the adjoining property and— (a) agreed between the adjoining owner and the owner; or (b) in the absence of an agreement, determined by the Building Appeals Board under Part 10. (2) The costs and expenses of an adjoining owner which are agreed or determined may be recovered in a court of competent jurisdiction as a debt due to the adjoining owner. 98 Compensation An owner must compensate any adjoining owner or adjoining occupier for inconvenience, loss or damage suffered by the adjoining owner or adjoining occupier in connection with the carrying out of protection work under this Part.

99 Liability not affected Nothing in this Part relieves an owner from any liability to which the owner would otherwise be

92

subject for injury to the adjoining owner or adjoining occupier because of the protection work carried out by the owner under this Part. 100 Saving for easements Nothing in this Part relating to the carrying out of protection work (other than overhead protection work) authorises any interference with an easement of light or other easement in or relating to a party wall or prejudicially affects the right of any person to preserve any right in connection with a party wall which is demolished or rebuilt or to take any necessary steps for that purpose. 101 Lodgment of plans after completion of protection work (1) Not later than 2 months after the completion of any protection work carried out under this Part, the owner must serve on the adjoining owner and the relevant building surveyor a complete set of plans, drawings and specifications showing the protection work which has actually been carried out in respect of the adjoining property. P 10 penalty units. (2) The relevant building surveyor, within 7 days after receiving plans, drawings and specifications under subsection (1), must give a copy of those documents to the relevant council. P 10 penalty units. _______________

93

s. 102

PART 8—ENFORCEMENT OF SAFETY AND BUILDING STANDARDS

Division 1—Emergencies 102 Emergency orders (1) A municipal building surveyor may make an emergency order under this Division, if he or she is of the opinion that the order is necessary because of a danger to life or property arising out of the condition or use or proposed use of a building, the land on which building work is being or is proposed to be carried out or a place of public entertainment. (2) The municipal building surveyor must cause an emergency order under subsection (1) to be served on the owner and the occupier of the building, land or place concerned without delay after it is made. 103 Contents of emergency orders (1) An emergency order may require the owner or occupier of a building or land or a place of public entertainment to do any one or more of the following things within a specified time or times — (a) evacuate the building, land or place; (b) not to conduct or not to allow the conduct of a public entertainment or immediately cease to conduct a public entertainment; (c) to stop building work or to carry out building work or other work necessary to make the building, land or place safe or to secure the building, land or place from access.

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s. 104

(2) An emergency order may also prohibit— (a) the occupation of a building or place of public entertainment; or (b) the use of a building or place of public entertainment for a public entertainment— for the period set out in the order, which must not exceed 48 hours. (3) An emergency order must be in writing and must contain any matters required by the regulations.
S. 104 amended by No. 71/1995 s. 8 (as amended by No. 34/1997 s. 32).

104 Duration of order Subject to section 103(2), an emergency order remains in force until it is complied with or it is cancelled by the municipal building surveyor under section 105 or the Building Appeals Board under section 142. 105 Cancellation of emergency order A municipal building surveyor may cancel an emergency order by written notice given to the owner and to the occupier of the building, place or land concerned if the order was made in error or the circumstances giving rise to the making of the order have changed. Division 2—Building notices and building orders 106 Building notices Subject to section 107, a municipal building surveyor or a private building surveyor may cause a building notice to be served on an owner of a building, land on which building work is being or is proposed to be carried out or a place of public entertainment if the building surveyor is of the opinion that any one of the following circumstances exists— (a) building work has been carried out on the

95

s. 107

building, land or place without a building permit required by this Act, or in contravention of a building permit or this Act or the building regulations; (b) the use of the building or place contravenes this Act or the building regulations; (c) the building or place is unfit for occupation or for use as a place of public entertainment; (d) the building, land or place or building work on the building, land or place is a danger to the life, safety or health of any member of the public or of any person using the building, land or place or to any property. 107 Actions by private building surveyors A private building surveyor may only serve a building notice or make a building order under this Division in respect of a building, land or place in relation to which the private building surveyor is appointed to carry out a function under this Act. 108 Contents and form of building notice (1) A building notice may require the owner of a building or place of public entertainment to show cause within a specified period— (a) why occupation of the building or place or its use for public entertainment should not be prohibited; or (b) why the owner should not do either or both of the following things— (i) evacuate the building, land or place;

(ii) carry out building work, protection work or work required by the

96

s. 109

regulations in relation to the building, land or place. (2) A building notice must be in writing and must contain any matters required by the regulations. 109 Representations by owner An owner may, in the manner specified in the notice, make representations to the relevant building surveyor about the matters contained in the notice. 110 Cancellation of building notice The relevant building surveyor may cancel a building notice if he or she considers it appropriate to do so after considering any representations made under section 109. 111 Building orders—general (1) Subject to section 107, a municipal building surveyor or a private building surveyor may make a building order under this section after the end of the time allowed by the building notice for making representations. (2) Before making an order, the relevant building surveyor must consider any representations made by the owner concerned. (3) A building order under this section may— (a) prohibit the occupation of a building; or (b) prohibit the occupation of a place of public entertainment or its use for public entertainment; or

(c) require the owner of a building, land on which building work is being or is proposed to be carried out or place of public

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s. 112

entertainment to do either or both of the following things within a specified time or times— (i) evacuate the building, land or place; (ii) carry out building work, protection work or other work required by the regulations or to carry out a program of that work as directed in the order. 112 Building orders to stop building work (1) Subject to section 107, a municipal building surveyor or a private building surveyor may make a building order that requires an owner or other person to stop building work. (2) The order may be made if, in the opinion of the relevant building surveyor, the building work— (a) contravenes this Act or the building regulations; or (b) is a danger to the life, safety or health of any member of the public or any person using the building, land or place or to any property; or (c) affects the support of any adjoining property. (3) The order may be made without first serving a building notice. (4) The order may be made even if a building order has been made under section 111 in respect of the building work or the building, land or place on which the building work is being carried out.

(5) If an order to stop building work is made under this section, the person to whom it is directed must stop the building work except building work

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carried out in compliance with an order under section 111 in respect of the building work. 113 Building orders—minor work Subject to section 107, a municipal building surveyor or a private building surveyor may make a building order requiring building work, protection work or other work required by the regulations to be carried out without first serving a building notice if the building surveyor is of the opinion that the work required to be carried out is of a minor nature. 114 Form and service of building order (1) A building order— (a) must be in writing; and (b) must specify the time or times within which the order must be complied with; and (c) must contain any other matters required by the regulations. (2) The relevant building surveyor must cause a building order to be served on the person to whom it is directed without delay after it is made. 115 Failure to comply with order by private building surveyor (1) If a person fails to comply with a building order made by a private building surveyor, the private building surveyor must refer the matter to the Commission and must take no further action in respect of the matter under this Part. (2) A referral under subsection (1) must be made within 14 days after the final date for compliance specified in the order. 116 Amendment or cancellation of certain building orders

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(1) An owner who is required to comply with a building order may, if there is a change in circumstances after the service of the order, request the relevant building surveyor to amend or cancel the building order. (2) On a request being made, the relevant building surveyor may— (a) amend or cancel the building order; or (b) refuse to amend or cancel the building order. (3) The relevant building surveyor is deemed to have refused a request under this section if he or she has not decided the request within the prescribed time. 117 Duration of order A building order remains in force, and, if amended, remains in force as amended, until— (a) it is complied with; or (b) it is cancelled by the relevant building surveyor or the Building Appeals Board. Division 3—General 118 Contravention of emergency order or building order (1) A person to whom an emergency order or building order is directed must comply with that order. P 100 penalty units, in the case of a natural person. 500 penalty units, in the case of a body corporate.

(2) A person must not occupy a building, land or place in contravention of an emergency order or

100

s. 119

building order. P 100 penalty units, in the case of a natural person. 500 penalty units, in the case of a body corporate.
S. 118(3) amended by No. 68/2009 s. 97(Sch. item 13).

(3) It is a sufficient defence to a prosecution under this section in relation to a public entertainment if the accused satisfies the court that he or she was unaware and ought not reasonably to have been aware of the fact that the public entertainment was the subject of an emergency order under this Part. 119 Building permit not required Despite anything to the contrary in this Act or the building regulations, a person who carries out work in accordance with an emergency order or building order in force under this Part is not required to obtain a building permit or comply with the building regulations unless the relevant building surveyor so directs. 120 Completion of work required by emergency order or building order (1) On completion of the work required to be carried out by an emergency order or building order, the owner must notify the relevant building surveyor in writing, without delay. P 10 penalty units. (2) The relevant building surveyor must inspect the notified work and— (a) report to the relevant council that the order has been fully complied with; or (b) require the order to be fully complied with. 121 Work may be carried out by municipal building surveyor

101

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s. 121

If an owner fails to carry out work as required by an emergency order or building order made by a municipal building surveyor, the municipal building surveyor may cause that work to be carried out. 122 Minister may authorise action where immediate danger If the Minister reasonably believes that a building or place of public entertainment presents an immediate danger to life or property and the owner— (a) cannot immediately be contacted; or (b) is unwilling or unable to take immediate action to comply with an emergency order— the Minister may require a municipal building surveyor to take any necessary action. 123 Recovery of costs (1) If a municipal building surveyor carries out any work or takes any action under this Division, the relevant council may recover the costs of carrying out the work or taking the action from the owner in a court of competent jurisdiction as a debt due to the council. (2) If a municipal building surveyor carries out any work or takes any action under this Division, the relevant council may apply any sum or part of any sum for which a bond or undertaking is deposited with the council under a condition imposed on a permit under section 22 towards the costs of carrying out the work or taking the action.

124 Police assistance (1) A municipal building surveyor may request the

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assistance of a member of the police force, and a member of the police force may assist— (a) in evacuating a building, land or place of public entertainment in accordance with an emergency order; or (b) in removing persons from a building, land or place of public entertainment in or on which the municipal building surveyor or any person assisting the building surveyor is carrying out work or taking any action in accordance with an emergency order or building order. (2) A member of the police force may use reasonable force in carrying out a function under subsection (1). 125 Relevant building surveyor to notify council (1) The relevant building surveyor, within 7 days after making any emergency order, building notice or building order under this Part, must give to the relevant council a copy of the notice or order. P 10 penalty units. (2) The relevant building surveyor, within 7 days after an emergency order, building notice or building order under this Part has been fully complied with or is amended or cancelled, must give a written notice of the compliance, amendment or cancellation to the relevant council.

126 Register of orders (1) The relevant council must keep a register of all

103

emergency orders, building notices or building orders given to the council under this Part. (2) The council must make the register available for inspection by any person during normal office hours. _______________

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PART 9—LIABILITY

Division 1—Immunity 127 Immunity for Commissioner and staff of Commission and members of and persons employed, appointed or engaged by public authority (1) The Commissioner or a member of a public authority (other than a council) or any person who is employed, appointed or engaged by the Commission or a public authority (other than a council) is not personally liable for anything necessarily or reasonably done or omitted to be done in good faith— (a) in carrying out a function under this Act or the regulations; or (b) in the reasonable belief that the act or omission was in the carrying out of a function under this Act or the regulations. (2) If the Commissioner or a person employed, appointed or engaged by the Commission does or omits to do anything— (a) negligently in the carrying out of a function under this Act or the regulations; or (b) in the reasonable belief that the person is carrying out a function under this Act or the regulations— and the act or omission is necessary or reasonable in the carrying out or intended carrying out of that function, any liability that would, but for subsection (1), attach to the person because of that act or omission attaches instead to the Commission.

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(3) If a person who is a member of or employed, appointed or engaged by a public authority (other than a council) does or omits to do anything— (a) negligently in the carrying out of a function under this Act or the regulations; or (b) in the reasonable belief that the person is carrying out a function under this Act or the regulations— and the act or omission is necessary or reasonable in the carrying out or intended carrying out of that function, any liability that would, but for subsection (1), attach to the person because of that act or omission attaches instead to the public authority. 128 Immunity for building surveyor relying on certificate A municipal building surveyor or a private building surveyor appointed under Part 6 is not liable for anything done or omitted to be done in good faith in reliance on a certificate given by a registered building practitioner under section 238. Division 2—Limitation of actions
Pt 9 Div. 2 (Heading) substituted by No. 54/2007 s. 5.

129 Definitions In this Division— building action means an action (including a counter-claim) for damages for loss or damage arising out of or concerning defective building work; building work includes the design, inspection and issuing of a permit in respect of building work9.

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130 Division not to affect certain matters Nothing in this Division— (a) applies to or affects any right to recover damages for death or personal injury arising out of or concerning defective building work; or (b) affects the operation of any immunity given by Division 1.
S. 131 amended by Nos 2/1996 s. 9, 52/1998 s. 311(Sch. 1 item 10.3), repealed by No. 60/2003 s. 17. Ss 132, 133 repealed by No. 60/2003 s. 17.

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134 Limitation on time when building action may be brought Despite any thing to the contrary in the Limitation of Actions Act 1958 or in any other Act or law, a building action cannot be brought more than 10 years after the date of issue of the occupancy permit in respect of the building work (whether or not the occupancy permit is subsequently cancelled or varied) or, if an occupancy permit is not issued, the date of issue under Part 4 of the certificate of final inspection of the building work.

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s. 134A

134A Limitation on time when plumbing action may be brought Despite anything to the contrary in the Limitation of Actions Act 1958 or in any other Act or law, if a compliance certificate is issued in respect of plumbing work under Part 12A, an action (including a counter-claim) for damages for loss or damage arising out of or concerning any defects in the work cannot be brought more than 10 years after the date of issue of the certificate. Division 3—Insurance 135 Order requiring insurance (1) The Minister may, by order published in the Government Gazette— (a) require building practitioners in specified categories or classes of building practitioners or any part of a class or category of building practitioners to be covered by insurance; and (b) require specified classes of persons to whom section 137B or 137D applies to be covered by insurance for the purposes of that section; and (c) specify the kinds and amount of insurance by which building practitioners and persons in each specified category or class or part of a category or class are required to be covered. (2) An order under subsection (1) or subsection (4) must state the date of taking effect of the order which must not be earlier than one month after the date of publication of the order in the Government Gazette.

S. 134A inserted by No. 39/1996 s. 6.

S. 135 substituted by No. 91/1995 s. 139.

S. 135(2) amended by No. 36/2002 s. 9(1).

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(3) The Minister may in a particular case vary any excess specified in an order under subsection (1) if the Minister is satisfied that it is appropriate to do so.
S. 135(4) substituted by No. 36/2002 s. 9(2).

(4) The Minister may, by order published in the Government Gazette, amend or revoke an order made under subsection (1). (5) The Minister may consult with the Building Practitioners Board before making an order under this section. (6) For the purposes of this Act, a person is covered by the required insurance if— (a) the person holds the required insurance; or (b) the building work carried out by or on behalf of the person is covered by the required insurance; or (c) in the case of a person who manages or arranges the carrying out of domestic building work, the work carried out by the person and the building work which the person manages or arranges is covered by the required insurance; or (d) the person is not a party to the required insurance but is specified or referred to in the insurance, whether by name or otherwise, as a person to whom the insurance cover extends. (7) In this section insurance includes— (a) professional indemnity insurance; (b) a performance bond; (c) a guarantee;

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(d) an indemnity; (e) public liability insurance; (f) insurance relating to a particular building work project; (g) insurance taken out by any body or person which relates to the work of a building practitioner; (h) any agreement or instrument in the nature of an item set out in paragraphs (a) to (g). 136 Offence to work as building practitioner without required insurance (1) A building practitioner (other than a builder carrying out or managing or arranging the carrying out of domestic building work) must not carry out work as a building practitioner unless the building practitioner is covered by the required insurance. P 100 penalty units, in the case of a natural person. 500 penalty units, in the case of a body corporate. (2) A builder must not carry out or manage or arrange the carrying out of domestic building work under a major domestic building contract unless the builder is covered by the required insurance. P 100 penalty units, in the case of a natural person. 500 penalty units, in the case of a body corporate.
S. 136 substituted by No. 91/1995 s. 140.

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s. 137
S. 137 amended by No. 91/1995 s. 141.

137 Offence to claim to be insured when uninsured A building practitioner who is not covered by the required insurance, must not hold himself or herself out as being covered by that insurance. P 100 penalty units, in the case of a natural person. 500 penalty units, in the case of a body corporate.

S. 137AA inserted by No. 102/2003 s. 42.

137AA Insurance for domestic building work to be provided by designated insurers (1) If an order under section 135 requires a builder to be covered by insurance relating to the carrying out of domestic building work or managing or arranging the carrying out of domestic building work, the insurance required by the order must be provided by a designated insurer. (2) For the purposes of subsection (1) a designated insurer is— (a) a general insurer within the meaning of the Insurance Act 1973 of the Commonwealth; or (b) a Lloyd's underwriter within the meaning of the Insurance Act 1973 of the Commonwealth authorised under that Act to carry on insurance business in Australia; or (c) an insurer specified by the Minister by notice under this section. (3) The Minister may by notice published in the Government Gazette specify an insurer for the purposes of this section.

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(4) The Minister must not specify an insurer under subsection (3) unless the Minister is satisfied that the insurer has an acceptable international credit rating and that the insurer does not carry on insurance business in Australia. (5) For the purposes of this section an acceptable international credit rating is a rating that— (a) is provided by a credit rating agency specified under subsection (6); and (b) is equal to or exceeds the rating specified in relation to that agency under subsection (6). (6) The Minister may by notice published in the Government Gazette— (a) specify a credit rating agency for the purposes of this section; and (b) specify a rating in relation to that agency. (7) The Minister may by notice published in the Government Gazette amend or revoke any notice published under this section. (8) The Minister must consult with the Minister for the time being administering the Victorian Managed Insurance Authority Act 1996 before publishing any notice under this section. (9) In this section insurance has the same meaning as it has in section 135. (10) This section applies only to insurance taken out on or after the commencement of section 42 of the Wrongs and Other Acts (Law of Negligence) Act 2003.

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s. 137A
S. 137A inserted by No. 91/1995 s. 142.

137A Insurance for domestic building work (1) Without limiting section 135, if an order under that section requires a builder to be covered by insurance relating to the carrying out of domestic building work or managing or arranging the carrying out of domestic building work, the insurance required by the order may, subject to any exemptions or exclusions set out in the order, relate to losses resulting from— (a) breaches of warranties implied into the major domestic building contract for that work under the Domestic Building Contracts Act 1995; (b) domestic building work which is defective within the meaning of that Act; (c) non-completion of the domestic building work;

S. 137A(1)(a) amended by No. 52/1998 s. 311(Sch. 1 item 10.4).

S. 137A(1)(d) amended by No. 17/1999 s. 22(1).

(d) conduct by the builder in connection with the major domestic building contract for that work which contravenes section 52, 53, 55A or 74 of the Trade Practices Act 1974 of the Commonwealth or section 9, 11 or 12 of the Fair Trading Act 1999. (2) An order under section 135 may require insurance cover of a kind referred to in— (a) subsection (1)(a) to extend to each person who is or may become entitled to the benefit of any of those warranties; or (b) subsection (1)(b) to extend to any person on whose behalf the domestic building work is being carried out and to the owner for the time being of the building or land in respect of which the building work was being carried out.

S. 137A(3) inserted by No. 26/2001 s. 9(1).

(3) A builder who holds a HIH policy within the

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meaning of Part 6 of the House Contracts Guarantee Act 1987 is deemed for the purposes of sections 136(2) and 137 to be covered by the required insurance in relation to any building work to which the indemnity under Part 6 of the House Contracts Guarantee Act 1987 applies. (4) A reference— (a) in any order made under section 135; or (b) in any instrument or agreement which is required insurance— to "section 11, 12 or 17 of the Fair Trading Act 1985", is, to the extent that it relates to any period on or after the commencement of section 22 of the Fair Trading (Inspectors Powers and Other Amendments) Act 1999, deemed to include a reference to "section 9, 11 or 12 of the Fair Trading Act 1999". 137B Offence for owner-builder to sell building without report or insurance (1) This section does not apply to— (a) the construction of a building (other than a home) by— (i) a registered building practitioner; or (ii) an architect registered under the Architects Act 1991; or (b) except as provided in subsection (5), the construction of a home under a major domestic building contract; or (c) a building that is exempted from the operation of this section by the Victorian Civil and Administrative Tribunal under the Domestic Building Contracts Act 1995; or
S. 137B(1)(c) substituted by No. 52/1998 s. 311(Sch. 1 item 10.5). S. 137A(3) inserted by No. 17/1999 s. 22(2), renumbered as s. 137A(4) by No. 11/2002 s. 3(Sch. 1 item 6.2).

S. 137B inserted by No. 91/1995 s. 142.

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(d) a building to which section 137E applies; or (e) a building to which Part 2 of the House Contracts Guarantee Act 1987 applies. (2) A person who constructs a building must not enter into a contract to sell the building under which the purchaser will become entitled to possess the building (or to receive the rent and profits from the building) within the prescribed period unless — (a) in the case of a person other than a registered building practitioner— (i) the person has obtained a report on the building from a prescribed building practitioner that contains the matters that are required by the Minister by notice published in the Government Gazette; and (ii) the person obtained the report not more than 6 months before the person enters into the contract to sell the building; and (iii) the person has given a copy of the report to the intending purchaser; and (b) the person is covered by the required insurance (if any); and (c) the person has given the purchaser a certificate evidencing the existence of that insurance; and (d) in the case of a contract for the sale of a home, the contract sets out the warranties implied into the contract by section 137C. P 100 penalty units.

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(3) A contract entered into in contravention of subsection (2) is not void by reason only of the contravention but is voidable at the option of the purchaser at any time before completion of the contract. (4) A person who enters into a major domestic building contract with a builder for the construction of more than 4 homes may, with the consent of the builder, apply in writing to the Director of Consumer Affairs Victoria within the meaning of the Fair Trading Act 1999 to exempt the builder from the requirement to be covered by the required insurance in respect of that building work. (5) If, on an application under subsection (4), the Director of Consumer Affairs Victoria, in writing, exempts a builder from the requirement to be covered by insurance in respect of building work — (a) the builder is not required to be covered by the required insurance in respect of that building work; and (b) this section (except subsection (2)(a)) applies to the sale of a home constructed under that major domestic building contract. (5AA) A reference in subsection (2) to a person who constructs a building includes a reference to— (a) a mortgagee in possession of the land on which the building is situated; and (b) an executor or administrator of the estate of the person who constructed the building. (5AAB) A mortgagee, executor or administrator referred to in subsection (5AA) may rely on anything which was done by the person who constructed the building under subsection (2)(a) in the 6 months before a contract of sale is entered into by the 116
S. 137B (5AAB) inserted by No. 36/2008 s. 3(1). S. 137B(5AA) inserted by No. 36/2008 s. 3(1). S. 137B(4) amended by Nos 17/1999 s. 22(3), 35/2000 s. 42, 30/2003 s. 82(1).

mortgagee, executor or administrator as if it had been done by the mortgagee, executor or administrator.
S. 137B(5A) inserted by No. 26/2001 s. 9(2).

(5A) It is and is to be taken always to have been sufficient compliance with subsection (2)(c) if a certificate is or was given evidencing the existence of required insurance in the form of a HIH policy (within the meaning of Part 6 of the House Contracts Guarantee Act 1987) applying to the residence. (6) This section applies whether or not the construction of the building is complete at the date of the contract of sale. (7) In this section—

certified date of commencement, in relation to a building, means the date certified by the owner of the building by statutory declaration as the date of commencement of the building work for the construction of the building; completion date means— (a) the date of issue of the occupancy permit in respect of the building (whether or not the occupancy permit is subsequently cancelled or varied); or (b) if an occupancy permit is not issued, the date of issue under Part 4 of the certificate of final inspection of the building work for the construction of the building; construct in relation to a building, means— (a) build, rebuild, erect or re-erect the building; or (b) make alterations to the building; or

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s. 137B

(c) enlarge or extend the building; or (d) cause any other person to do anything referred to in paragraph (a), (b) or (c) in relation to the building; or (e) manage or arrange the doing of anything referred to in paragraph (a), (b) or (c) in relation to the building; home has the same meaning as it has in the Domestic Building Contracts Act 1995;
S. 137B(7) def. of home amended by No. 52/1998 s. 311(Sch. 1 item 10.6). S. 137B(7) def. of prescribed period amended by Nos 2/1996 s. 10(1), 75/1998 s. 19, 36/2008 s. 3(3).

prescribed period means— (a) in relation to a contract for the sale of a building on which domestic building work has been carried out— (i) 6 years and 6 months (or such longer period (not exceeding 10 years) as is prescribed) after the completion date for the construction of the building; or (ii) if neither an occupancy permit nor a certificate of final inspection is issued or required to be issued in respect of the construction of the building— (A) 7 years after the date of the issue of the building permit in respect of the construction of the building; or (B) if a building permit is not issued or required to be issued in respect of the construction of the building, 6 years and 6 months after

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s. 137C

the certified date of commencement for the building; and (b) in relation to a contract for the sale of any other building—10 years after the completion date for the construction of that building;
S. 137B(7) def. of prescribed building practitioner amended by Nos 2/1996 s. 10(2), 52/1998 s. 311(Sch. 1 item 10.6).

prescribed building practitioner means— (a) an architect registered under the Architects Act 1991; or (b) a building surveyor, building inspector or an engineer registered under Part 11; or (c) a person recognised by the Minister under section 28 of the House Contracts Guarantee Act 1987 by order in force immediately before the commencement of section 166 of the Domestic Building Contracts Act 1995.

S. 137C inserted by No. 91/1995 s. 142.

137C Warranties for purposes of homes under section 137B (1) The following warranties are part of every contract to which section 137B applies which relates to the sale of a home— (a) the vendor warrants that all domestic building work carried out in relation to the construction by or on behalf of the vendor of the home was carried out in a proper and workmanlike manner; and (b) the vendor warrants that all materials used in that domestic building work were good and suitable for the purpose for which they were used and that, unless otherwise stated in the contract, those materials were new; and

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(c) the vendor warrants that that domestic building work was carried out in accordance with all laws and legal requirements, including, without limiting the generality of this warranty, this Act and the regulations. (2) In addition to the purchaser under a contract to which section 137B applies, any person who is a successor in title to the purchaser may take proceedings for a breach of the warranties listed in subsection (1) as if that person were a party to the contract. (3) A provision of an agreement or instrument that purports to restrict or remove the right of a person to take proceedings for a breach of any of the warranties listed in subsection (1) is void to the extent that it applies to a breach other than a breach that was known or ought reasonably to have been known to the person to exist at the time the agreement or instrument was executed. 137D Insurance requirements for the purposes of homes under section 137B (1) Without limiting section 135, if an order under that section requires a person to whom section 137B applies to be covered by insurance for the purposes of section 137B in respect of the sale of a home the insurance required by that order— (a) may, subject to any exemptions or exclusions set out in the order, relate to losses resulting from breaches of warranties implied into the contract for the sale of the home under section 137C; and (b) must provide that the insurer is not liable in respect of any defect which is referred to in the report provided to the purchaser under section 137B, if a report is required under that section.
S. 137D inserted by No. 91/1995 s. 142.

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(2) An order under section 135 may require insurance cover of a kind referred to in subsection (1)(a) to extend to each person who is or may become entitled to the benefit of any of those warranties.
S. 137E inserted by No. 91/1995 s. 142.

137E Insurance requirements for home sold before completion A person must not enter into a contract for the sale by the person of land on which a home is being constructed, or is to be constructed, if the contract provides for or contemplates that the construction of the home will be completed before the completion of the contract unless— (a) the home is being constructed under a major domestic building contract or the contract of sale is a major domestic building contract or provides that the home is to be constructed under a major domestic building contract; or (b) Part 2 of the House Contracts Guarantee Act 1987 applies to the construction of that home. P 100 penalty units. __________________

Division 1—Rights of appeal 138 Building and occupancy permits (1) An appeal may be made to the Building Appeals Board against— (a) the refusal or deemed refusal of a permit; or (b) the imposition of a condition on a permit other than a prescribed condition or a condition required by or under this Act or the regulations to be included in a permit; or (c) the amendment or cancellation of a permit; or (d) the refusal or deemed refusal of an application to amend or cancel a permit; or (e) the failure, within a reasonable time, to decide an application to amend or cancel a permit, if no time is prescribed within which the decision must be made. (2) An appeal may be made to the Building Appeals Board against a requirement of a reporting authority or relevant building surveyor to— (a) give more information about a permit application; or (b) amend a permit application. (3) If a condition of a permit leaves anything to be determined or approved by a person or body or confers any similar discretion on a person or body, an appeal may be made to the Building Appeals Board against— (a) the person's or body's failure, within a

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reasonable time, or refusal to make that determination, give that approval or exercise that discretion; or (b) that determination or approval or the exercise of that discretion. (4) An appeal under this section may be made by— (a) the owner of the building or land in respect of which the permit is sought; or (b) if the land in respect of which the permit is sought is a lot of a kind referred to in section 9AA(1) of the Sale of Land Act 1962, the purchaser under a contract of sale of that lot. (5) A prescribed reporting authority may appeal to the Building Appeals Board against a decision to issue a permit that differs from, or fails to implement, the authority's recommendations in a report on the application for the permit. 139 Temporary occupation of buildings The owner of a building may appeal to the Building Appeals Board against— (a) the refusal of approval under Division 3 of Part 5 to occupy the building on a temporary basis; or (b) the imposition of a condition on an approval under Division 3 of Part 5, other than a prescribed condition or a condition required by or under this Act or the regulations to be included in the approval; or (c) the amendment or cancellation of an approval under Division 3 of Part 5; or (d) a failure within a reasonable time to decide an application to issue, amend or cancel an approval under Division 3 of Part 5.

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s. 140

140 Private building surveyors (1) An owner who appoints a private building surveyor or a private building surveyor may appeal to the Building Appeals Board against the Commission's failure, within a reasonable time, or refusal to consent to the termination of the building surveyor's appointment. (2) If under Part 6— (a) an owner has notified the Commission that building work has been terminated; and (b) the owner proposes to appoint another private building surveyor or a municipal building surveyor in respect of that building work— that owner or building surveyor may appeal to the Building Appeals Board against the Commission's failure, within a reasonable time, or refusal to consent to that appointment. 141 Protection work An owner required to carry out protection work or an adjoining owner may appeal to the Building Appeals Board against— (a) a determination under section 87 as to the appropriateness of the work; or (b) a declaration under section 89; or (c) a failure, within a reasonable time, or refusal to make that determination or declaration; or (d) a requirement under section 87 to give more information. 142 Building notices and orders (1) The owner of a building or land, may appeal to the Building Appeals Board against—

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(a) a decision to serve a building notice on the owner under Division 2 of Part 8; or (b) the failure within a reasonable time, or refusal to cancel a building notice on being requested to do so by the owner. (2) The owner of a building or land may appeal to the Building Appeals Board against— (a) the making of a building order under Division 2 of Part 8 applying to that building or land; or (b) the imposition of any condition in that order; or (c) a refusal to amend or cancel that order; or (d) a failure, within a reasonable time, to amend or cancel that order; or (e) a requirement under Division 3 of Part 8 that the building order be fully complied with.
S. 142(3) inserted by No. 71/1995 s. 10.

(3) The owner or occupier of a building or land may appeal to the Building Appeals Board against— (a) a refusal of the municipal building surveyor to cancel an emergency order under Division 1 of Part 8 applying to that building or land; or (b) a failure, within a reasonable time, to cancel that order.

143 Appeals against decisions of Building Practitioners Board (1) A person to whom a decision of the Building Practitioners Board under Division 1 or 2 of

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Part 11 applies may appeal against the decision to the Building Appeals Board. (1A) A person to whom a decision of the Building Practitioners Board under Division 3A of Part 3 applies may appeal to the Building Appeals Board against— (a) a decision of the Building Practitioners Board under that Division; or (b) a failure of the Building Practitioners Board, within a reasonable time, to make a decision under that Division. (2) The Commission may appeal to the Building Appeals Board against— (a) a failure by the Building Practitioners Board, within a reasonable time, to inquire into a matter referred to it by the Commission; or (b) a refusal by the Building Practitioners Board to hold an inquiry into a matter so referred to it; or (c) a decision by the Building Practitioners Board on an inquiry into a matter so referred to it. (3) A person who requested the Building Practitioners Board to hold an inquiry under Division 2 of Part 11 may appeal to the Building Appeals Board against— (a) a failure by the Building Practitioners Board, within a reasonable time, to hold that inquiry; or (b) a refusal by the Building Practitioners Board to hold that inquiry; or (c) a decision by the Building Practitioners Board on that inquiry. 144 Appeals—Building regulations
S. 143(1A) inserted by No. 66/2004 s. 10.

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If the building regulations leave a matter to be determined or approved by a person or body or confer a similar discretion on a person or body, the owner of the building or land who requests the determination to be made, approval to be given, or discretion to be exercised may appeal to the Building Appeals Board against— (a) that determination or approval or the exercise of that discretion; or (b) the failure within a reasonable time, or refusal to make that determination, give that approval or exercise that discretion.
S. 144A inserted by No. 15/2002 s. 53.

144A Appeals—Building and Construction Industry Security of Payment Act 2002 (1) A person may appeal to the Building Appeals Board against a decision of the Building Commission under section 42 of the Building and Construction Industry Security of Payment Act 2002— (a) to refuse an application by the person for an authority to nominate adjudicators for the purposes of that Act; or (b) to withdraw the person's authority to nominate adjudicators for the purposes of that Act.

(2) A person may appeal to the Building Appeals Board against a decision of the Building Commission under section 43 of the Building and Construction Industry Security of Payment Act 2002— (a) to impose a condition on the person's

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authority to nominate adjudicators for the purposes of that Act; or (b) to vary a condition of the person's authority to nominate adjudicators for the purposes of that Act. Division 2—Appeals 145 Division additional to other powers This Division is in addition to and does not take away from any other provision of this Act about the powers or procedure of the Building Appeals Board. 146 Effect of decisions under appeal (1) Subject to subsections (2) and (3), a decision in respect of which there is a right of appeal under Division 1 does not take effect until— (a) the end of the appropriate prescribed appeal period, if there is no appeal; or (b) the decision is affirmed on appeal. (2) Unless the Building Appeals Board otherwise directs, an appeal under section 138, 139, 174A or 178, does not stay the operation of the decision under appeal. (3) An appeal under section 142(3) does not stay the operation of the emergency order to which the appeal relates. 147 Fast track appeals (1) On an appeal under Division 1 (other than against a decision of the Building Practitioner's Board) any party to the appeal may request the Building Appeals Board to begin to hear or otherwise deal with the appeal within 2 business days after the
S. 146(2) amended by Nos 91/1995 s. 143, 36/2008 s. 4. S. 146(3) inserted by No. 71/1995 s. 11(2). S. 146(1) amended by No. 71/1995 s. 11(1).

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s. 149

request is made. (2) A request under subsection (1)— (a) must be made in writing; and (b) must be accompanied by the appropriate prescribed fee. (3) The Building Appeals Board may grant or refuse the request and, if it grants the request, may require the person making the request to pay— (a) the reasonable costs of all the parties to the appeal for the proceedings after the request is granted; and (b) if the Board hears the appeal, an additional prescribed fee for the time taken for the hearing (including any adjourned hearing) excluding the first 2 hours of hearing. 148 Nature of an appeal (1) An appeal under this Part is in the nature of a re-hearing. (2) On an appeal the Building Appeals Board may consider matters not raised before the decision under appeal was made.

149 What action can be taken on appeal? (1) The Building Appeals Board must consider and determine an appeal and by its determination may — (a) affirm the decision under appeal; or

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(b) quash the decision under appeal; or (c) vary the decision under appeal; or (d) set the decision under appeal aside and— (i) substitute its own decision; or (ii) remit the decision to the decisionmaker for reconsideration in accordance with any directions or recommendations that it considers appropriate. (2) In considering and determining an appeal, the Building Appeals Board has in addition to its other powers all the powers of the decision-maker in relation to the decision under appeal. (3) Without limiting subsection (2), on an appeal under section 140 the Building Appeals Board has the same powers as the Commission has under Part 6 to give directions concerning transitional and other arrangements following a consent given by the Commission. (3A) For the purposes of this Part, if an appeal is made to the Building Appeals Board against the refusal of a building permit or the imposition of a condition on a building permit, the decision under appeal is to be taken to include the decision or report of the relevant reporting authority if—
S. 149(3A) inserted by No. 30/2001 s. 4.

(a) the building permit was refused because the reporting authority refused consent or the condition was imposed as a result of a recommendation in a report of the reporting authority; and (b) the refusal of consent, or the making of the

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s. 150

recommendation, was based on a decision made by the reporting authority in relation to the guidelines made under section 188A. (4) The Building Appeals Board may make any ancillary or incidental orders that it considers necessary to give effect to its determination on an appeal. Division 3—Disputes 150 Disputes about inspections If a dispute arises between an owner and the relevant building surveyor about the exercise of any of the building surveyor's powers under section 36 either of them may refer the matter to the Building Appeals Board. 151 Emergency protection work If an owner and an adjoining owner cannot agree about how or when protection work required by declaration under section 89(1) is to be carried out, either of them may refer the matter to the Building Appeals Board. 152 Insurance If an owner and an adjoining owner cannot agree about the nature of cover to be provided under a proposed contract of insurance under section 93 or about the amount to be insured under that contract, either of them may refer the matter to the Building Appeals Board. 153 Surveys of adjoining property If an owner and an adjoining owner cannot agree about how or when a survey is to be carried out under section 94 or about the adequacy of a survey carried out under that section, either of

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them may refer the matter to the Building Appeals Board. 154 Cost of supervising protection work If an owner and an adjoining owner cannot agree about the costs and expenses necessarily incurred by the adjoining owner in supervising protection work under Part 7, either of them may refer the matter to the Building Appeals Board. 155 Other disputes between owners and adjoining owners If an owner and adjoining owner cannot agree in relation to a matter arising under Part 7, and the Building Appeals Board does not have jurisdiction to deal with that matter under any other provision of this Part, either of them may refer the matter to the Building Appeals Board. 156 Disputes about the building permit levy If a dispute arises between the applicant for a building permit and the relevant building surveyor about the building surveyor's estimate of the cost of the work for which the permit is sought either of them may refer the matter to the Building Appeals Board.

157 Application and effect of building regulations If— (a) there is a dispute about a building, building work or proposed building work between all or any of the following—

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s. 159

(i) the owner of the building or the land on which the building work is being or is to be carried out; (ii) the person who carries out or is to carry out the building work; (iii) the relevant building surveyor; (iv) the Commission; and (b) the dispute concerns the application or effect of any provision of the building regulations (within the meaning of section 160) or whether any provision of the building regulations is or has been complied with— any of those persons may refer the matter to the Building Appeals Board. 158 Party walls (1) If a dispute arises between the owners of buildings with a party wall about the construction of the wall or how much of the cost of construction is to be met by each of the owners, any of the owners may refer the matter to the Building Appeals Board. (2) Subsection (1) is in addition to and does not take away from the Subdivision Act 1988.

Division 4—Other proceedings 159 Compensation—protection work An adjoining owner who suffers inconvenience, loss or damage during the carrying out of protection work under Part 7 may apply to the

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Building Appeals Board for an order determining the amount (if any) of compensation for that inconvenience, loss or damage. 160 Modification of building regulations (1) In this section provision of the building regulations means— (a) a provision of a regulation made under Part 2 or of a local law made under those regulations; or (b) a provision of a regulation or local law made under Division 3 of Part III of the Building Control Act 1981; or (c) a provision of a regulation or by-law made under Division 2 of Part XLIX of the Local Government Act 1958; or (d) any other regulation or by-law that, by virtue of a provision of this Act or a corresponding previous enactment, applies or applied at a material time to building work; or (e) a provision of a document applied, adopted or incorporated by reference in an instrument referred to in paragraphs (a) to (d); or

(f) a provision of a document referred to in paragraphs (a) to (e) as modified by the Building Appeals Board under this Part, the building referees under the Building Control Act 1981 or the referees under the Thirty-Third Schedule of the Local

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s. 160A

Government Act 1958 or a corresponding previous enactment. (2) An application may be made to the Building Appeals Board for a determination that a provision of the building regulations— (a) does not apply; or (b) applies with the modifications or variations specified in the application— to a building or land specified in the application. (3) The application may be made by— (a) the owner of a building or land; or (b) the purchaser under a contract of sale of a lot of a kind referred to in section 9AA(1) of the Sale of Land Act 1962; or
S. 160(3)(c) amended by Nos 46/1998 s. 7(Sch. 1), 108/2004 s. 117(1) (Sch. 3 item 21.1).

(c) a Department Head within the meaning of the Public Administration Act 2004; or

(d) a public authority; or (e) a municipal building surveyor.

S. 160A inserted by No. 34/1997 s. 11.

160A Application for determination in respect of building design (1) An application may be made to the Building Appeals Board for a determination that a particular design of a building or an element of a building complies with this Act, the building

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regulations or any document applied, adopted or incorporated in the building regulations. (2) The application may be made by— (a) the owner of the building or land; or (b) the purchaser under a contract of sale of a lot of a kind referred to in section 9AA(1) of the Sale of Land Act 1962; or (c) the relevant building surveyor; or (d) the Commission. Division 5—Powers concerning disputes and other proceedings 161 General powers The Building Appeals Board must consider and determine a matter referred or application made to it under this Act or any other Act and may make any order that it considers appropriate in the circumstances. 162 Special powers—modification of regulations (1) Before determining an application under section 160 the Building Appeals Board— (a) must consult— (i) any authority that would be a reporting authority if the application were an application for a permit; and (ii) the Commission, if the application discloses that any aspect of the matter has been considered by it; and (iii) if the application shows that any aspect of the matter relates to a building permit, the relevant building surveyor; and (b) if the application concerns a building
S. 162(1)(b) amended by No. 93/1995 s. 218(1) (Sch. 2 item 1.2). S. 161 amended by No. 109/1997 s. 533(Sch. 2 item 1.1).

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included in the Heritage Register established under the Heritage Act 1995, must consider any recommendation received from the Heritage Council before the hearing of the application; and
S. 162(1)(c) amended by No. 71/1995 s. 12(1). S. 162(1)(d) inserted by No. 71/1995 s. 12(1).

(c) may consult the municipal building surveyor; and (d) may consult any other body or person.

S. 162(1A) inserted by No. 71/1995 s. 12(2).

(1A) The Building Appeals Board must, on the application of any party to the proceedings, make available a copy of any report or information obtained under subsection (1)(d). (2) The Building Appeals Board must not determine that a provision of the building regulations does not apply to a building or land unless satisfied that, in the particular circumstances, the provision is inappropriate. (3) The Building Appeals Board must not determine that a provision of the building regulations applies to a building or land in a modified or varied form unless satisfied that to do so is reasonable and not detrimental to the public interest. (4) The Building Appeals Board may make its determination of an application under section 160 subject to all or any of the following conditions—

S. 162(4)(a) amended by No. 71/1995 s. 13(1)(a).

(a) requiring an owner of land to enter into an agreement with a reporting authority or, if there is no reporting authority, with the relevant council; or (b) directing a reporting authority or council to enter into that agreement; or

S. 162(4)(b) amended by No. 71/1995 s. 13(1)(b).

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(c) specifying the terms of that agreement; or (d) any other terms and conditions that it considers appropriate. (5) A reporting authority or council is authorised to enter into an agreement for the purposes of this section. 163 Agreements An agreement required to be entered into by a determination under section 162— (a) must be in writing under seal; and (b) if its terms are not specified in the determination— (i) must provide that the owner agrees to be bound by the covenants in the agreement; and (ii) may prohibit, restrict or regulate the use or development of land or a building or any matter or thing related to that land or building; and
S. 162(5) amended by No. 71/1995 s. 13(2).

(iii) may provide that the agreement lapses at the end of a specified period, on the happening of a specified event, or when the land ceases to be used or developed for a specified purpose; and (iv) is subject to the provisions of this Act concerning termination and variation of agreements; and (c) may apply to land even though it was not the subject of the application for the determination.

(1) With the approval of the Building Appeals Board, an owner and a reporting authority or an owner and a council (as the case requires) may, by further agreement, terminate or vary an agreement under this Division. (2) With the approval of the Building Appeals Board, a reporting authority or council may terminate or vary an agreement under this Division in the manner specified in the Board's approval. (3) Subject to this section and to a term of an agreement referred to in section 163(b)(iii) an agreement cannot be terminated.

S. 164(2) amended by No. 71/1995 s. 13(4).

S. 164(4) amended by No. 71/1995 s. 13(5).

(4) An owner, a reporting authority or a council may apply to the Building Appeals Board for approval under this section and the Board may by determination— (a) grant approval; or (b) grant approval with conditions; or (c) refuse approval.

(1) Without delay after entering into an agreement under section 163 or 164 or after an agreement is terminated or varied, a reporting authority or council (as the case requires) must— (a) lodge a copy of the agreement or variation with the Building Appeals Board or give notice of the termination to the Board; and

S. 165(1)(b) substituted by No. 85/1998 s. 24(Sch. item 6.2).

(b) apply in a form approved by the Registrar of Titles to have a recording of the agreement or the variation or termination of the

(2) On an application under this section, the Registrar of Titles must make any amendments to the Register under the Transfer of Land Act 1958 that are necessary because of the application and may dispense with the production of any relevant certificate of title or other instrument. (3) Once an agreement is recorded in the Register under the Transfer of Land Act 1958— (a) the burden of any covenant in the agreement (whether positive or negative) runs with the land, even though there may be no land benefited by the covenant; and (b) any covenant in the agreement may be enforced as a restrictive covenant and binds the owner of the land and the owner's successors in title.
S. 165(3) amended by No. 85/1998 s. 24(Sch. item 6.3).

(4) The amendment of this section by section 24 of the Transfer of Land (Single Register) Act 1998 does not affect the operation, effect or enforcement of a covenant in an agreement entered into under section 163 or 164 and registered under the Property Law Act 1958 and existing immediately before the commencement of that section 24. Division 6—The Building Appeals Board 166 Establishment and membership of Building Appeals Board

S. 165(4) inserted by No. 85/1998 s. 24(Sch. item 6.4).

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s. 166

(1) There is established by this Act a Board to be called the Building Appeals Board. (2) The members of the Building Appeals Board are to be appointed by the Governor in Council on the Minister's recommendation. (3) The Building Appeals Board is to consist of— (a) a person appointed to be chairperson of the Board; and (b) a person who, in the Minister's opinion, has experience in the building industry or in matters related to that industry, who is to be appointed deputy chairperson of the Board; and
S. 166(3)(ba) inserted by No. 68/2001 s. 8(1), substituted b y No. 18/2005 s. 18(Sch. 1 item 10.1). S. 166(3)(bb) inserted by No. 68/2001 s. 8(1).

(ba) at least one person who is an Australian lawyer (within the meaning of the Legal Profession Act 2004) of at least 5 years' standing; and (bb) at least one person who, in the Minister's opinion, is able to represent the interests of users of the services of building practitioners; and (c) as many other persons as the Minister considers necessary for the purposes of this Act, and who, in the Minister's opinion, have experience in the building industry or in matters related to that industry. (4) A person cannot at the same time be a member of the Building Appeals Board and be— (a) the Commissioner; or (b) a member of the Building Practitioners Board; or (c) a member of the Building Advisory Council.

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(5) A person may at the same time be a member of the Building Appeals Board and the Building Regulations Advisory Committee. (6) Schedule 3 has effect with respect to the membership and procedure of the Building Appeals Board. * * * * *
S. 167 repealed by No. 71/1995 s. 14.

168 Register The Registrar of the Building Appeals Board must keep a Register of proceedings and determinations of the Board. __________________

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s. 169

PART 11—REGISTRATION OF BUILDING PRACTITIONERS

Division 1—Registration 169 Application for registration (1) A natural person may apply to the Building Practitioners Board to be registered as a building practitioner. (2) The application must— (a) be in writing; and (b) state each category or class of registration sought; and (c) be in accordance with the regulations; and
S. 169(2)(ca) inserted by No. 36/2008 s. 5(1).

(ca) be accompanied by the prescribed information relating to the character of the applicant; and (d) be accompanied by the appropriate fee determined in accordance with the guidelines under Division 1 of Part 12; and

S. 169(2)(e) substituted by No. 91/1995 s. 144.

(e) if, under Part 9 the applicant is required to be covered by insurance, include proof that— (i) the applicant is covered by the required insurance; or (ii) to the extent that a builder is engaged in domestic building work, the applicant is eligible to be covered by the required insurance.

S. 169(2A) inserted by No. 36/2008 s. 5(2).

(2A) An application for registration as a building surveyor must specify one of the following classes of registration— (a) building surveyor (unlimited); (b) building surveyor (limited).

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(3) The Board may ask the applicant to give it any more information that it reasonably requires to determine the application and may refuse the application if the applicant does not comply with the request within a reasonable time. 170 Registration (1) The Building Practitioners Board must register an applicant in each category or class applied for if it is satisfied that the applicant— (a) has complied with section 169; and (b) either— (i) holds an appropriate prescribed qualification; or (ii) holds a qualification that the Board considers is, either alone or together with any further certificate, authority, experience or examination equivalent to a prescribed qualification; and (c) is of good character; and (d) has complied with any other condition prescribed for registration in that category or class. (2) The Building Practitioners Board may refuse to register an applicant if the requirements of subsection (1) are not met. * * * * *
S. 170(3)(4) repealed by No. 62/1998 s. 8(1).

171 Period of registration (1) Registration under this Part as a building practitioner lasts until cancelled under this Part. (2) Subsection (1) does not take away from any provision about suspension of registration. 172 Building practitioner's certificate (1) Without delay after a person is registered as a building practitioner, the Building Practitioners Board must cause a building practitioner's certificate to be issued and given to that person.
S. 172(2) substituted by No. 91/1995 s. 145(1). S. 172(2)(a) amended by No. 18/1998 s. 4.

(2) On each anniversary of his or her registration a registered building practitioner must— (a) pay to the Building Administration Fund the appropriate annual fee determined in accordance with guidelines under Division 1 of Part 12; and (b) if under Part 9 the applicant is required to be covered by insurance, give written proof to the Board that— (i) until the next anniversary of his or her registration or, subject to such conditions as the Board may impose, any lesser period approved by the Board, he or she will be covered by the required insurance; or (ii) to the extent that a builder is engaged in domestic building work, he or she is eligible to be covered by the required insurance. (3) The Board must suspend a person's registration under this Part if the person fails to comply with subsection (2).

S. 172(2)(b) amended by No. 36/2002 s. 10(1).

S. 172(4) substituted by No. 91/1995 s. 145(2).

(4) The suspension lasts until the person—

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(a) pays the appropriate annual fee and any appropriate fee for late payment determined in accordance with guidelines under Division 1 of Part 12; and (b) gives the Board written proof that— (i) until the next anniversary of his or her registration or, subject to such conditions as the Board may impose, any lesser period approved by the Board, he or she will be covered by the required insurance (if any); or (ii) to the extent that a builder is engaged in domestic building work, he or she is eligible to be covered by the required insurance (if any). When that payment is made and that proof is given, the Board must revoke the suspension. (4A) Despite anything to the contrary in subsection (4), the Board may decide not to revoke the suspension of a person who has been suspended for more than 3 years unless the Board is satisfied that the person— (a) is of good character; and (b) had a satisfactory reason for the extended period of suspension. (5) As soon as possible after a registered building practitioner— (a) complies with subsection (2); or (b) has the suspension of his or her registration revoked under subsection (4)— the Board must cause a new building practitioner's certificate to be issued and given to the person. (6) The building practitioner's certificate must—
S. 172(4A) inserted by No. 71/1995 s. 16.

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(a) state the person's name and category or class of registration; and (b) state that it is current for a specified period ending on the next anniversary of the practitioner's registration; and (c) otherwise be in accordance with the regulations. (7) The Registrar may issue a duplicate building practitioner's certificate, if the registered building practitioner requests this, pays the appropriate prescribed fee, and satisfies the Registrar that the original certificate is lost or destroyed.
S. 172(8) inserted by No. 26/2001 s. 10(1), substituted by No. 36/2002 s. 10(2), repealed by No. 36/2002 s. 10(4)(a). S. 172(9) inserted by No. 26/2001 s. 10(1), repealed by No. 36/2002 s. 10(2). S. 172A inserted by No. 36/2008 s. 6.

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172A Change to prescribed information A registered building practitioner must notify the Board of any change to the prescribed information about the practitioner provided to the Board under section 169(2)(ca) without delay after the change occurs. P 10 penalty units.

173 The Register

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(1) The Registrar of the Building Practitioners Board must keep a Register, divided into the various prescribed categories and classes of building practitioners, of the names and categories or classes of registration of persons currently registered under this Part. (2) A registered building practitioner must notify the Board of any change in the information about the practitioner appearing in the Register without delay after the change occurs, and the Registrar must update the Register accordingly. (3) The Register must be in accordance with the regulations. 174 Suspension where insurance ceases (1) The Building Practitioners Board must suspend a person's registration under this Part if it becomes aware that the person has ceased to be covered under any insurance required under Part 9. (2) The Board must give the person written notice of the suspension of the person's registration under subsection (1). (3) The suspension lasts until the person gives the Board written proof that he or she is covered by the required insurance and that the cover is provided until the next anniversary of his or her registration and, when that proof is given, the Board must revoke the suspension. * * * * *
S. 174(4) inserted by No. 26/2001 s. 10(2), substituted by No. 36/2002 s. 10(3), repealed by No. 36/2002 s. 10(4)(b). S. 174(5) inserted by No. 26/2001 s. 10(2), repealed by No. 36/2002 s. 10(3).

174A Suspension of registration where failure to comply with insurer's direction (1) An insurer may apply to the Building Practitioners Board for the suspension of the registration of a domestic builder on the ground of a failure by the builder to comply with a reasonable direction of the insurer in respect of the completion or rectification of defective building work or any payment to be made to the insurer in respect of the completion or rectification of defective building work in accordance with required insurance or in accordance with a guarantee under the House Contracts Guarantee Act 1987 or a failure by the builder to comply with a direction under section 44 of the House Contracts Guarantee Act 1987. (2) An application under subsection (1) must— (a) be in writing; and (b) set out the terms of the direction to be complied with. (3) The Building Practitioners Board must notify the builder without delay of that application and advise the builder— (a) that his or her registration under this Part may be suspended at the end of 28 days after the date of the notice unless the builder complies with the direction; and (b) that he or she has a right to be heard by the Building Practitioners Board in respect of the application.

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(4) If a builder has not complied with the direction within 28 days after the date of the notice, the Building Practitioners Board, after giving the builder an opportunity to be heard, may suspend the builder's registration under this Part. (5) The Board must give the builder written notice of the suspension of the builder's registration under subsection (4). (6) The suspension lasts until— (a) the Building Practitioners Board is satisfied that the builder has complied with the direction; or (b) it is cancelled by the Building Appeals Board under section 143. 175 Consequences of suspension of registration While a person's registration as a building practitioner is suspended under this Part, he or she is deemed not to be registered under this Part. 176 Offences (1) A person who is not registered in the appropriate category or class under this Part must not— (a) take or use any of the following titles— (i) building practitioner or registered building practitioner; or (ii) building surveyor, building surveyor (unlimited) or building surveyor (limited); or (iii) building inspector; or (iv) engineer, if the use of the title relates to the building industry; or (v) draftsperson, if the use of the title relates to the building industry; or
S. 176(1)(a)(ii) amended by No. 36/2008 s. 7(1).

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s. 176

(vi) quantity surveyor; or (vii) a prescribed title; or (b) practise as a building inspector; or (c) hold himself or herself out as being registered under this Part or in a particular category or class of registration; or (d) hold himself or herself out as being qualified to practise as a building practitioner either generally or in a particular category or class of work. P
S. 176(2) amended by No. 36/2008 s. 7(2).

50 penalty units.

(2) A person who is not registered under this Part as a building surveyor must not practise as a building surveyor (unlimited) or building surveyor (limited). P 100 penalty units. (2AA) A person who is registered as a building surveyor (limited) must not practise as a building surveyor except in respect of buildings up to 3 storeys in height with a maximum floor area of 2000 square metres. P 50 penalty units. (2A) A builder must not carry out domestic building work under a major domestic building contract unless the builder is registered under this Part in the appropriate class of domestic builder. P 100 penalty units. (3) Subsections (1), (2), (2AA) and (2A) do not apply to the use by a partnership of a title that can only be used by a person registered under this Part or the carrying out by a partnership of work that can only be carried out by a person registered under this Part, if at least one of the partners is registered in the appropriate category or class under this

Part. (4) Subsections (1), (2), (2AA) and (2A) do not apply to the use by a corporation of a title that can only be used by a person registered under this Part or the carrying out by a corporation of work that can only be carried out by a person so registered if at least one of the directors of the corporation is registered in the appropriate category or class under this Part. (5) Subsections (1), (2), (2AA) and (2A) do not apply to— (a) anything done in the course of official duties by— (i) an employee under Part 3 of the Public Administration Act 2004; or
S. 176(4) amended by Nos 91/1995 s. 147(2)(a), 36/2008 s. 7(4).

(ii) an officer or employee of the public service of the Commonwealth or a State or Territory of the Commonwealth other than Victoria; or (iii) an officer or employee of a public authority established under the law of the Commonwealth or a State or Territory of the Commonwealth other than Victoria; or (b) an organisation or member of staff of an organisation for the time being exempted by the Building Practitioners Board. (6) Despite anything to the contrary in this section, an insured architect may use the title "building practitioner" or "registered building practitioner". (7) If a person ("the first building practitioner") is
S. 176(6) amended by No. 35/2004 s. 35(2).

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s. 178

registered as a building practitioner in a particular category or class and the work usually done by building practitioners in that category or class includes work also usually done by building practitioners registered in another category or class, the first building practitioner— (a) does not have to be registered in that other category or class; and (b) may do that work without being registered in that other category or class; and
S. 176(7)(c) amended by No. 91/1995 s. 147(2)(b).

(c) does not commit an offence under subsection (1) or (2A) because he or she does that work.

Division 2—Inquiries 177 Preliminary assessment (1) The Building Practitioners Board may appoint a person to report and make recommendations to it on whether or not it should hold an inquiry into the conduct or ability to practise of a registered building practitioner. (2) The appointment may be made on the initiative of the Board or after the Commission has referred a matter to the Board or a person has requested the Board to hold an inquiry. (3) The appointed person must investigate the matter referred by the Board, and report and make recommendations to the Board in accordance with the terms of the appointment. 178 Inquiries (1) The Building Practitioners Board may conduct an inquiry about the conduct or ability to practise of a registered building practitioner—

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(a) on its own initiative; or (b) on the recommendation of a person appointed under section 177; or (c) on a referral by the Commission; or (ca) on a referral by the Victorian Civil and Administrative Tribunal; or
S. 178(1)(ca) inserted by No. 91/1995 s. 148, substituted by No. 52/1998 s. 311(Sch. 1 item 10.7). S. 178(1)(cb) inserted by No. 91/1995 s. 148.

(cb) on a referral by an insurer; or

(d) at the request of any other person. (2) At least 7 days before the inquiry is to be conducted, the Board must cause to be served on the registered building practitioner written notice of the date, time and place of the inquiry, and whether it is to proceed by written submissions or hearing. (3) The Board may suspend the practitioner's registration pending the holding and determination of an inquiry if the Board considers it is in the interests of the public to do so. (4) Without delay after suspending a person's registration under subsection (3), the Board must give the person written notice of the suspension. (5) The Board may at any time revoke a suspension under this section and must without delay give notice of the revocation to the registered building practitioner. (6) A person who has had his or her registration as a
S. 178(6) inserted by No. 36/2008 s. 8(2). S. 178(3) substituted by No. 36/2008 s. 8(1).

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registered building practitioner suspended under subsection (3) must, as soon as possible after the decision to suspend the registration is made— (a) give notice in the prescribed form of the suspension of the registration to any person who has a contract with the person relating to, or arising out of, the carrying out of his or her work as a registered building practitioner; and (b) give a copy of the notice to the Board. P 10 penalty units. 179 Inquiry into conduct (1) On an inquiry into the conduct of a registered building practitioner, the Building Practitioners Board may make any one or more of the decisions mentioned in subsection (2) if it finds that the registered building practitioner— (a) is guilty of unprofessional conduct; or (b) has failed to comply with this Act or the regulations; or (c) has failed to comply with a determination of the Building Appeals Board or a direction of the Commission; or (d) has been guilty of conduct in relation to his or her practice as a building practitioner which—

(i) is constituted by a pattern of conduct or by gross negligence or gross incompetence in a particular matter; and (ii) shows that he or she is not a fit and

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s. 179

proper person to practise as a building practitioner; or (da) has shown in the information provided to the Board under section 172A that he or she is not a fit and proper person to practise as a building practitioner; or (e) has employed or engaged to do, on his or her behalf, work of a kind that can only be done by a person registered under this Part in a particular category or class, a person who is not so registered; or (f) has obtained his or her registration under this Part or any required insurance by fraud or misrepresentation; or (fa) has failed to comply with a reasonable direction of an insurer in respect of the completion or rectification of defective building work or any payment to be made to the insurer in respect of the completion or rectification of defective building work in accordance with required insurance or in accordance with a guarantee under the House Contracts Guarantee Act 1987 or has failed to comply with a direction under section 44 of the House Contracts Guarantee Act 1987; or (fb) has failed to carry out a recommendation contained in an inspector's report under section 48 of the Domestic Building Contracts Act 1995; or (fc) has failed to comply with the Domestic Building Contracts Act 1995; or (g) has had his or her authority to practise as a building practitioner in a place outside Victoria cancelled or suspended otherwise 156
S. 179(1)(f) amended by No. 91/1995 s. 149(a). S. 179(1)(fa) inserted by No. 91/1995 s. 149(b), amended by No. 26/2001 s. 11(2). S. 179(1)(da) inserted by No. 36/2008 s. 9(1).

S. 179(1)(fb) inserted by No. 36/2002 s. 11.

S. 179(1)(fc) inserted by No. 36/2008 s. 9(2).

s. 179

than for failure to renew that authority; or (h) has failed to comply with an undertaking given to the Board under this Division. (2) The following are the decisions which the Board may make— (a) to reprimand the person; (b) to require the person to pay the costs of or incidental to the inquiry; (c) to require the person to give an undertaking not to do a specified thing;
S. 179(2)(ca) inserted by No. 36/2008 s. 9(3). S. 179(2)(d) amended by No. 34/1997 s. 12, substituted by No. 36/2008 s. 9(4).

(ca) to require the person to complete a specified course of training; (d) to impose a fine of not more than 100 penalty units unless— (i) a charge has been filed in the Magistrates' Court in respect of the matter; or (ii) the matter has been dealt with by a court exercising its criminal jurisdiction; or (iii) the matter has been dealt with by the issue of an infringement notice; (e) to suspend registration for not more than 3 years;

S. 179(2)(f) amended by No. 36/2008 s. 9(5).

(f) to cancel registration;

S. 179(2)(g) inserted by No. 36/2008 s. 9(6).

(g) to disqualify the person from being registered for a specified period of up to 3 years. (3) If satisfied that there is good reason to do so, the

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s. 179A

Board may at any time revoke a suspension under this section, and must without delay give written notice of that revocation to the registered building practitioner. 179A Inquiries into conduct of building practitioners who are no longer registered (1) A reference to a registered building practitioner in sections 177, 178 and 179 in relation to the holding of an inquiry into the conduct of a building practitioner includes a reference to any person who was a registered building practitioner at the time of the conduct, even though that person's registration is suspended at the time any action is taken under those sections. (2) Conduct that may be inquired into for the purposes of sections 177, 178 and 179 in relation to a person whose registration as a registered building practitioner has been suspended is limited to conduct that occurred during the 3 year period that immediately preceded the suspension. 179B Conduct of company or partnership to be conduct of building practitioner director or partner If a company or partnership of which a registered building practitioner is a director or partner fails to comply with this Act or the regulations in carrying out building work, that failure is taken to have been the conduct of the registered building practitioner and a failure by the registered building practitioner to comply with this Act and the regulations for the purposes of sections 178, 179 and 179A. 180 Inquiry into ability to practise (1) On an inquiry into a registered building practitioner's ability to practise, if the Building Practitioners Board is satisfied that the practitioner is incapable of practising it may—
S. 179B inserted by No. 36/2008 s. 10. S. 179A inserted by No. 68/2001 s. 10.

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s. 181

(a) suspend the person's registration for not more than 3 years; or (b) cancel the person's registration. (2) The Board may at any time revoke the suspension of a person's registration under this section if it is satisfied that he or she is again capable of practising as a building practitioner and must without delay give written notice of the revocation to the building practitioner.
S. 180A inserted by No. 91/1995 s. 150.

180A Complaints concerning builders etc. are privileged If a person— (a) lodges a complaint with the Board or requests an inquiry under section 178; or (b) produces or gives a document or any information or evidence to the Board or a person conducting an investigation under section 177— the person is not liable in any way for any loss, damage, or injury suffered by another person by reason only of the lodging of that complaint or the requesting of the inquiry or the production or giving of that document, information or evidence.

S. 181 amended by No. 34/1997 s. 13.

181 Costs If on an inquiry the Building Practitioners Board makes a finding favourable to a registered building practitioner, it may pay that practitioner's reasonable costs of and incidental to the inquiry. 182 Decisions (1) Without delay after the Building Practitioners Board makes a decision on an inquiry, the

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Registrar must give written notice of the decision to— (a) the registered building practitioner who is the subject of the inquiry; and (b) the Commission, if it referred the matter to the Board; and (ba) the Victorian Civil and Administrative Tribunal, if it referred the matter to the Board; and
S. 182(1)(ba) inserted by No. 91/1995 s. 151, substituted by No. 52/1998 s. 311(Sch. 1 item 10.8). S. 182(1)(bb) inserted by No. 91/1995 s. 151.

(bb) an insurer, if the insurer referred the matter to the Board; and (c) any person who requested the Board to hold the inquiry. (2) Any amount which the Board requires a registered building practitioner to pay by way of costs or a fine under this Division may be recovered as a debt due to the Board in any court of competent jurisdiction.

(3) If the Board is aware that a registered building practitioner is a member of a professional association or is employed by a particular person, the Board must cause notice of any decision concerning the practitioner made under section 179 or 180 to be given to that association and employer as soon as possible after the decision takes effect or is confirmed on appeal. (4) A person who has had his or her registration as a
S. 182(4) inserted by No. 36/2008 s. 11.

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s. 184

building practitioner cancelled or suspended under section 179 or 180 must, as soon as possible after the decision to cancel or suspend the registration takes effect or is confirmed on appeal— (a) give notice in the prescribed form of the cancellation or suspension of the registration to any person who has a contract with the person relating to, or arising out of the carrying out of his or her work as a registered building practitioner; and (b) give a copy of the notice to the Board. P 10 penalty units.

Division 3—The Building Practitioners Board 183 Establishment and functions of Board (1) There is established by this Act a Board to be called the Building Practitioners Board. (2) The following are the functions of the Board— (a) to administer a registration system for building practitioners; (b) to supervise and monitor the conduct and ability to practise of registered building practitioners; (c) to make recommendations to the Minister about the qualifications for registration;
S. 183(2)(ca) inserted by No. 66/2004 s. 12.

(ca) to issue certificates of consent;

(d) any other functions conferred by this Act or the regulations. 184 Membership of the Board (1) The members of the Building Practitioners Board are to be appointed by the Governor in Council on

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the Minister's recommendation. (2) Of the members of the Board— (a) one is to be a person appointed as chairperson; and (ab) at least one is to be an Australian lawyer (within the meaning of the Legal Profession Act 2004) of at least 5 years' standing; and
S. 184(2)(ab) inserted by No. 68/2001 s. 8(2), substituted b y No. 18/2005 s. 18(Sch. 1 item 10.2). S. 184(2)(ac) inserted by No. 68/2001 s. 8(2).

(ac) at least one is to be a person who, in the Minister's opinion, is able to represent the interests of users of the services of building practitioners; and (ad) one is to be a person who is a member of the Architects Registration Board of Victoria established under the Architects Act 1991; and (b) the other members are to be appointed in accordance with this section. (3) One member of the Board is to be appointed in respect of each category of registered building practitioner, and that member is to be chosen by the Minister from a list of three names submitted to the Minister by the organisation which, in the Minister's opinion, is the major professional association for that category. (3A) An additional member may be appointed in respect of the category of builder, and that member is to be chosen by the Minister from a list of three names submitted to the Minister by an organisation which, in the Minister's opinion, is a major professional association for that category. (4) If in the Minister's opinion there are two or more major professional associations for a category of registered building practitioner, the Minister may

S. 184(2)(ad) inserted by No. 35/2004 s. 36.

S. 184(3A) inserted by No. 2/1996 s. 12(1).

S. 184(4) amended by No. 2/1996 s. 12(2)(a).

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request each of them to submit a list in accordance with subsection (3) or (3A), and may choose the member for that category from the lists given to the Minister.
S. 184(5) amended by No. 2/1996 s. 12(2)(b).

(5) If there is or is about to be a vacancy in the membership of the Board under subsection (2)(b), the Minister may request an organisation referred to in subsection (3) or (3A) or each organisation referred to in subsection (4) (as the case requires) to submit a list of 3 names within a period specified in the request. (6) The Minister may nominate a person for appointment under subsection (2)(b) without considering a list of names if an organisation requested to submit that list has not complied with the request. (7) A person cannot at the same time be a member of the Building Practitioners Board and be the Commissioner or a member of the Building Appeals Board. 185 Co-opted members (1) To assist in considering a particular matter, the Building Practitioners Board may co-opt any person to be a member of the Board. (2) The Board may at any time remove a co-opted member from office. (3) The provisions of Schedule 3 applying to members of the Building Practitioners Board appointed by the Governor in Council also apply to co-opted members. 186 Sub-committees (1) The Building Practitioners Board may establish and dissolve sub-committees and define their functions, procedure and membership. (2) A member of a sub-committee does not have to be

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a member of the Board. (3) A member of a sub-committee is entitled to receive— (a) any remuneration; and (b) any travelling or other allowances— fixed from time to time by the Minister in respect of that member. 186A Delegation (1) The Building Practitioners Board may, by instrument, delegate the Board's functions under section 172(3) and (4) to the chairperson or a member of the Board. (2) The Building Practitioners Board may, by instrument, delegate the Board's functions under sections 25D, 25E(1), 25E(3) and 170(1) to the Registrar of the Board. 187 Membership and procedure—general (1) Subject to subsections (2) and (3), Parts 1 and 2 of Schedule 3 apply to the membership and procedure of the Building Practitioners Board.
S. 186A inserted by No. 34/1997 s. 14, amended by No. 18/1998 s. 5 (ILA s. 39B(1)). S. 186A(2) inserted by No. 18/1998 s. 5, amended by No. 66/2004 s. 13.

(2) Clause 8 of Schedule 3 applies to the Building Practitioners Board— (a) only in respect of its functions under Division 2 of this Part; and (b) as if that clause requires that one of the members of the panel is to be the member of the Board appointed in respect of the category of registered building practitioner to which the person who is the subject of the

S. 187(2) substituted by No. 34/1997 s. 15.

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Board's inquiry belongs; and (c) otherwise in the same way as it applies to the Building Appeals Board. (3) Clause 15 of Schedule 3 applies to the Building Practitioners Board in the same way as it applies to the Building Appeals Board. __________________

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s. 188

PART 12—BUILDING ADMINISTRATION

Division 1—Role of Minister 188 Guidelines (1) The Minister may from time to time issue guidelines relating to— (a) the fees to be charged for applications for permits and approvals and any fees to be charged under this Act and the regulations; and (b) the charges to be made for services provided by the Commission; and (c) the functions of municipal building surveyors and private building surveyors under this Act or the regulations; and (d) the circumstances in which a municipal building surveyor or private building surveyor should, in preparing a building notice or building order, seek assistance from the Chief Fire Officer of the Metropolitan Fire Brigades under the Metropolitan Fire Brigades Act 1958, the Chief Officer under the Country Fire Authority Act 1958 or any public authority. (2) Guidelines relating to fees— (a) may specify the fees or specify maximum or minimum fees; and (b) may specify different fees for different classes of cases. (2A) Guidelines relating to the fees chargeable under Part 11 in respect of domestic builders may take into account the costs and expenses incurred in the administration and enforcement of the Domestic
S. 188(2A) inserted by No. 91/1995 s. 152, amended by No. 52/1998 s. 311(Sch. 1 item 10.9).

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s. 188A

Building Contracts Act 1995 and the regulations under that Act. (3) The guidelines must be published in the Government Gazette. (4) A council or private building surveyor, in determining fees for applications for permits, may have regard to the guidelines under subsection (1) (a) about those fees. (5) The Building Practitioners Board, in determining fees under Division 1 of Part 11, must have regard to the guidelines under subsection (1)(a) about those fees. (6) The Commission must have regard to the guidelines under subsection (1)(b) in fixing charges for the provision of services. (7) A municipal building surveyor or private building surveyor must have regard to any relevant guideline under subsection (1)(c) or (d) in carrying out a function under this Act or the regulations.
S. 188A inserted by No. 30/2001 s. 3.

188A Decision guidelines on design and siting of single dwellings (1) The Minister may from time to time issue guidelines relating to the design and siting of single dwellings. (2) Without limiting subsection (1), these matters may include— (a) matters relating to the consideration of neighbourhood character and amenity and the acceptability of the design and siting of the proposed dwelling in the neighbourhood; (b) matters relating to the availability of light to, and the overshadowing of, nearby buildings and allotments;

167

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s. 188A

(c) matters relating to privacy and overlooking, in relation to nearby buildings and allotments; (d) matters relating to the height of a building, and the distances from buildings to the boundaries of an allotment or to nearby buildings; (e) matters relating to how much of an allotment may be used for buildings, how much of an allotment may be covered by impermeable surfaces and the provision of open spaces on an allotment; (f) matters relating to the preservation of trees, and of architectural or heritage features; (g) matters relating to the provision of car parking in relation to an allotment; (h) matters relating to the use of impermeable surface materials on an allotment and their effect on drainage and runoff; (i) matters relating to the energy efficiency of buildings; (j) matters relating to fences and boundary walls on an allotment. (3) The guidelines must be published in the Government Gazette. (4) In this section single dwelling means a building, or buildings, of a class specified by the regulations for the purposes of this section that is, or are, intended to be used as a dwelling.

189 Delegation The Minister may by instrument delegate to the

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Commission any of the Minister's functions under this Act, other than this power of delegation. 190 Minister may require Commission to act as building surveyor (1) If the Minister is of the opinion that it is in the public interest to do so the Minister may declare that for specified building work or a specified building or land, any or all of the functions of a municipal building surveyor under this Act and the regulations are to be carried out by the Commission10. (2) A declaration under subsection (1) must be published in the Government Gazette. 191 Administration and enforcement outside municipal district (1) The Minister may declare that the administration and enforcement of Parts 3, 4, 5, 7 and 8 and the building regulations in any area not being part of a municipal district is to be carried out— (a) by a person or body specified by the Minister; and (b) in accordance with the directions of the Minister. (2) A declaration or direction under subsection (1) must be published in the Government Gazette. (3) Parts 3, 4, 5, 7 and 8 and the building regulations apply to an area referred to in subsection (1) as if — (a) any reference to a council were a reference to the person or body specified in the declaration; and (b) any reference to a municipal building surveyor were a reference to a building surveyor registered under Part 11 and

169

s. 192

authorised in writing by that person or body; and (c) any reference to a municipal district were a reference to that area; and (d) any reference in section 66 or clause 1 of Schedule 2 to the Local Government Act 1989 were a reference to guidelines under section 188 of this Act. 192 Alpine resorts (1) The Minister, after consulting with the councils concerned, may declare that the administration and enforcement of Parts 3, 4, 5, 7 and 8 and the building regulations in an alpine resort (within the meaning of the Alpine Resorts Act 1983) is to be carried out by the Board (within the meaning of the Alpine Resorts (Management) Act 1997. (2) A declaration under subsection (1) must be published in the Government Gazette. (3) Parts 3, 4, 5, 7 and 8 and the building regulations apply in an alpine resort referred to in subsection (1) as if— (a) any reference to a council were a reference to the Board of the resort; and (b) any reference to a municipal building surveyor were a reference to a building surveyor registered under Part 11 and authorised in writing by the Board of the resort; and (c) any reference to a municipal district were a reference to the alpine resort; and (d) any reference in section 66 or clause 1 of Schedule 2 to the Local Government Act 1989 were a reference to guidelines under
S. 192(3)(a) substituted by No. 89/1997 s. 70(2)(a). S. 192(3)(b) amended by No. 89/1997 s. 70(2)(b). S. 192(1) substituted by No. 89/1997 s. 70(1).

(1) There is established by this Act a body to be called the Building Commission. (2) The Commission— (a) is a body corporate with perpetual succession; and (b) shall have an official seal; and (c) may sue and be sued in its corporate name; and (d) may acquire, hold and dispose of real and personal property for the purpose of performing its functions; and (e) may do and suffer all acts and things that bodies corporate may by law do and suffer and that are necessary or incidental for the performance of its functions. (3) The official seal of the Commission must be kept in the custody that the Commission directs and must not be used except as authorised by the Commission. (4) All courts must take judicial notice of the official seal of the Commission affixed to a document and must presume that it was duly affixed. 194 Constitution of the Commission (1) The Commission is constituted by a

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Commissioner who is to be appointed by the Governor in Council on the Minister's recommendation. (2) The Commissioner must not engage in paid employment outside the duties of his or her office without the Minister's permission. (3) If the Commissioner was immediately before his or her appointment a member of a statutory superannuation scheme within the meaning of the Superannuation (Public Sector) Act 1992, he or she continues while so appointed, subject to the Act under which the statutory superannuation scheme is created, to be a member of that scheme. (4) Subject to subsection (5), clauses 1 to 6 and 9 of Schedule 3 apply to the Commissioner in the same way as they apply to a chairperson or member of a Board. * * * * *
S. 194(5) repealed by No. 42/1995 s. 224(Sch. 2 item 6).

195 Accountability of the Commission (1) The Commission is subject to the direction and control of the Minister. Those directions may be general or specific. (2) In giving a direction under subsection (1) the Minister may have regard to any advice of the Building Advisory Council. (3) The Commission must give the Minister any information and assistance that the Minister requires and the Commission is able to give. 196 Functions of the Building Commission The functions of the Building Commission are—
S. 196 amended by No. 85/2000 s. 6, substituted by No. 54/2007 s. 6.

172

(a) to monitor and enforce compliance with the provisions of this Act and the regulations relating to building and building practitioners; (b) to participate on behalf of Victoria in the development of national building standards; (c) to monitor developments relevant to the regulation of building standards in Victoria; (d) to monitor the system of collection of the building permit levy; (e) to administer the Building Administration Fund; (f) to disseminate information (including dissemination to consumers) on matters relating to building standards and the regulation of buildings and building practitioners;
S. 196(g) repealed by No. 46/2008 s. 248(4).

*

*

*

*

*

(h) to provide information and training to assist persons and bodies in carrying out functions under this Act or the regulations (except Part 12A and the regulations under that Part); (i) to charge and collect fees (determined in accordance with this Act) for information and training services provided by it; (j) to promote the resolution of consumer complaints about work carried out by builders; (k) to conduct or promote research relating to

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s. 196AA

the regulation of the building industry in Victoria and to report on the outcomes of this research in its report of operations under the Financial Management Act 1994; (l) to advise the Minister on the carrying out of the Commission's functions and powers under this Act and on any other matter referred to it by the Minister; (m) generally to carry out any other function or duty conferred on it by or under this or any other Act or under any agreement to which the State is a party. 196AA Powers of the Commission (1) The Commission may do all things that are necessary or convenient to enable it to perform its functions. (2) The Commission may accept any gifts or donations of money or other property by deed, will or otherwise. 196A Commission may provide information to the Director of Consumer Affairs Victoria The Commission may provide the Director of Consumer Affairs Victoria with any information held by the Commission in relation to a domestic building dispute (within the meaning of section 3 of the Domestic Building Contracts Act 1995) if the Commission considers that the provision of the information will assist in the resolution of the dispute. 197 Delegation The Commission may, by instrument, delegate any of its functions to any person, except this power of delegation, any power delegated to it by the Minister, or its powers under section 198. 198 Supervision of building surveyors
S. 196A (Heading) amended by No. 30/2003 s. 82(2). S. 196A inserted by No. 36/2002 s. 12, amended by No. 30/2003 s. 82(3). S. 196AA inserted by No. 54/2007 s. 7.

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(1) If a matter concerning a registered building surveyor comes to the notice of the Commission and it is within the jurisdiction of the Building Practitioners Board, the Commission may refer the matter to that Board. (2) If the Commission considers it necessary to do so for the proper administration of this Act or the regulations, it may direct a municipal building surveyor or private building surveyor to carry out his or her functions under this Act or the regulations— (a) in accordance with this Act or the regulations; or (b) within a period specified in the direction. (3) The Commission cannot under subsection (2)(b) vary a time limit prescribed by this Act or the regulations. (4) If the Commission considers it necessary to do so for the proper administration of this Act or the regulations, it may recommend to the person who appointed a municipal building surveyor or private building surveyor that the person take action specified by the Commission. (5) Before making a direction or recommendation under this section, the Commission must give written notice of its intention to the municipal building surveyor or private building surveyor and give the building surveyor a reasonable opportunity to make submissions about the matter. (6) The Commission must give a copy of any direction or recommendation under this section to the municipal building surveyor or private building surveyor concerned. 199 Special powers of the Commission as building surveyor

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(1) In addition to any function of a municipal building surveyor conferred on the Commission under Division 1, the Commission may carry out the functions of a municipal building surveyor under this Act and the regulations— (a) in relation to any application made to the Commission under Part 3; and (b) in relation to any matter referred to the Commission by a private building surveyor under Part 8; and (c) in relation to a place of public entertainment (other than a prescribed temporary structure) for which the Commission has issued an occupancy permit. (2) In carrying out a function of a municipal building surveyor conferred on the Commission under Division 1 or subsection (1), the Commission has the same powers that the municipal building surveyor would have to carry out that function. (3) A determination of the Commission in carrying out a function of a municipal building surveyor must be given effect to as if it were the determination of a municipal building surveyor. (4) If, in carrying out any function of a municipal building surveyor, the Commission carries out any work or takes any action under Part 8, the Commission may— (a) recover the costs of carrying out the work or taking the action from the owner in a court of competent jurisdiction as a debt due to the Commission; and (b) apply any sum or part of any sum for which a bond or undertaking is deposited with the Commission under a condition imposed on a
S. 199(1)(a) amended by No. 34/1997 s. 16.

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permit under section 22 towards the costs of carrying out the work or taking the action. (5) The Commission is, and may carry out the functions of, the relevant building surveyor under Part 5 in relation to— (a) an application to the Commission for an occupancy permit under section 53(2); and (b) the issue of that permit; and (c) the amendment or cancellation of that permit. (6) If, under this section, the Commission carries out any function in relation to building work or a building or land, a municipal building surveyor or private building surveyor must not carry out that function in respect of that building work, building or land. (7) If an application is made to the Commission under this Act for a permit or temporary approval or an amendment to a permit or approval, section 66 or clause 1 of Schedule 2 (as the case may be) applies as if any reference in that section or clause to the Local Government Act 1989 were a reference to guidelines under section 188 of this Act. 200 Building Administration Fund (1) The Commission must establish a fund to be called the Building Administration Fund. (2) The fund is divided into— (a) the general account; and
S. 200(2)(b) amended by No. 91/1995 s. 153(1).

(3) Amounts paid into the fund on account of the building permit levy payable under section 201(1) must be credited to the building permit levy account. (3A) The following amounts paid into the fund must be credited to the domestic building account— (a) any fees or fines received or recovered by or on behalf of the Building Practitioners Board in respect of the registration or discipline of builders engaged in domestic building work; and

S. 200(3) amended by No. 26/2001 s. 12(2).

S. 200(3A) inserted by No. 91/1995 s. 153(2).

(b) any costs or fees received by or on behalf of the Building Appeals Board in respect of any matter relating to the registration or

(3C) Amounts paid into the fund on account of the building permit levy payable under section 201(1A) must be credited to the domestic building (HIH) indemnity account. (3D) Amounts paid into the fund on account of the building permit levy payable under section 201(1C) must be credited to the domestic building dispute account. (4) Other amounts paid into the fund must be credited to the general account.

S. 200(3D) inserted by No. 36/2002 s. 13(3).

S. 200(5) substituted by No. 91/1995 s. 153(3).

(5) Amounts paid out of the fund may be paid— (a) out of the general account or the building permit levy account, as the Commission considers appropriate; or (b) out of the domestic building account in accordance with subsection (7A), if authorised by the Minister and the Minister administering the Domestic Building Contracts Act 1995; or * * * * *

(d) out of the domestic building (HIH) indemnity account in accordance with subsection (7D); or

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(e) out of the domestic building dispute account in accordance with subsection (7E). (6) There must be paid into the fund— (a) all money received or recovered by or on behalf of the Minister under this Act or the regulations; and (b) all money received or recovered by or on behalf of the Commission under any Act or regulations; and (c) any money received by a municipal building surveyor or private building surveyor on account of the building permit levy; and (d) any fees or fines received or recovered by or on behalf of the Building Practitioners Board; and (e) any costs or fees received by or on behalf of the Building Appeals Board; and (f) income from the investment of the fund; and (g) money appropriated by Parliament for the purposes of the fund; and (h) any other money required or authorised by or under this or any other Act to be paid into the fund. (7) There must be paid out of the fund— (a) any amounts required to carry out the functions of the Commission; and (b) any costs and expenses incurred in the administration and enforcement of this Act or the regulations, including, but not limited

S. 200(5)(e) inserted by No. 36/2002 s. 13(5).

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to— (i) the remuneration and allowances of the Commissioner and members of the Building Appeals Board, the Building Practitioners Board, the Building Advisory Council and the Building Regulations Advisory Committee; and (ii) the costs incurred in appointing or employing any person or using the services of any person for the purposes of this Act or the regulations; and
S. 200(7)(ba) inserted by No. 91/1995 s. 153(4), substituted by No. 52/1998 s. 311(Sch. 1 item 10.10), amended by Nos 85/2000 s. 7(4), 11/2002 s. 3(Sch. 1 item 6.3). S. 200(7)(bb) inserted by No. 85/2000 s. 7(4), amended by No. 54/2007 s. 11(1), repealed by No. 46/2008 s. 248(5).

(ba) in accordance with subsection (7A), any costs and expenses incurred in the administration of the Domestic Building Contracts Act 1995 or the regulations under that Act including, but not limited to, the costs and expenses of the Victorian Civil and Administrative Tribunal in respect of proceedings under that Act; and * * * * *

(c) any amounts authorised by the Minister to be paid out of the fund for a purpose relating to the building industry and approved by the Minister; and (d) any other amounts authorised to be paid out of the fund by or under this or any other Act.
S. 200(7A) inserted by No. 91/1995 s. 153(5).

(7A) Amounts may be paid out of the domestic building account towards—

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s. 200

(a) the costs and expenses referred to in subsection (7)(b) to the extent that they relate to the registration and discipline of builders engaged in domestic building work; and (b) the costs and expenses referred to in subsection (7)(ba). * * * * *
S. 200(7B)(7C) inserted by No. 85/2000 s. 7(5), repealed by No. 46/2008 s. 248(5). S. 200(7D) inserted by No. 26/2001 s. 12(5).

(7D) Any amount standing to the credit of the domestic building (HIH) indemnity account at the end of each month must be paid within 7 days to the Domestic Building (HIH) Indemnity Fund established under Part 6 of the House Contracts Guarantee Act 1987. (7E) Amounts may be paid out of the domestic building dispute account to the Domestic Builders Fund established under the Domestic Building Contracts Act 1995 and to the building permit levy account in the proportions determined from time to time by the Minister and the Minister administering the Domestic Building Contracts Act 1995. (8) The Commission may invest any part of the fund not immediately required for the purposes of the fund in any manner approved by the Treasurer. (9) The Commission may enter into arrangements or agreements with any person or body to act as its agent in the carrying out of its functions in relation to the administration of the fund. 201 Building permit levy (1) There is imposed by this Act a building permit

S. 200(7E) inserted by No. 36/2002 s. 13(6).

S. 200(9) inserted by No. 18/1998 s. 6.

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levy of ⋅ 064 cents in every dollar of the cost of building work for which a building permit is sought.
S. 201(1A) inserted by No. 71/1995 s. 17, amended by No. 34/1997 s. 17(1), substituted by No. 26/2001 s. 13(1).

(1A) There is imposed by this Act, in addition to the levy imposed by subsection (1), a building permit levy of .032 cents in every dollar of the cost of domestic building work for which a building permit is sought.

(1B) A building permit levy is not payable under subsection (1), (1A) or (1C) in relation to an application for a building permit if the cost of the building work is $10 000 or less. (1C) There is imposed by this Act, in addition to the levy imposed by subsections (1) and (1A), a building permit levy of ⋅ 064 cents in every dollar of the cost of building work for which a building permit is sought. (2) The levy is payable by the applicant for the building permit and must be paid before the building permit can be issued. (3) Subsection (2) does not stop the application being considered pending payment of the levy. (4) In addition to anything else required to be stated in an application for a building permit, that application must state— (a) the contract price for the building work (including the cost of labour and materials), if there is a contract for the work; or (b) in any other case, sufficient information to enable the relevant building surveyor to estimate the cost of the building work

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(including the cost of labour and materials). (5) The relevant building surveyor must estimate the cost of the building work for which the application is sought (including the cost of labour and materials), having regard to the information given under subsection (4)(a) or (b), and must without delay give written notice of the estimate and the amount of levy payable to the applicant. (6) Without limiting the other circumstances in which a relevant building surveyor can refuse application for a permit, the relevant building surveyor must refuse an application for a building permit if— (a) the levy is not paid at the end of 90 days after the building surveyor gives the applicant written notice of the estimated cost of the building work; or (b) the building surveyor is satisfied that the contract price for the work specified in the application is substantially lower than the price normally payable under contracts for work of that kind; or (c) the building surveyor is satisfied that the application does not comply with subsection (4)(b) or contains statements about the cost of the building work that are false or misleading in a material respect. (7) A relevant building surveyor must in accordance with the regulations— (a) keep records of— (i) amounts received by the building surveyor on account of the levy; and (ii) amounts of levy forwarded to the Commission by the building surveyor; and (b) make those records available to be inspected
S. 201(7) substituted by No. 34/1997 s. 17(2).

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by or on behalf of the Commission; and (c) pay the amounts received by the building surveyor into the Building Administration Fund; and (d) give to the Commission periodic returns setting out— (i) whether or not the building surveyor has received an amount of levy in the return period; and (ii) if an amount has been received, the amounts received and the amounts forwarded to the Commission; and (iii) any other prescribed information.
S. 201(7A) inserted by No. 34/1997 s. 17(2).

(7A) On the application of a relevant building surveyor, the Commission may exempt the building surveyor from the requirements of subsection (7) (d) for a specified period if the Commission is satisfied that due to illness or other reasonable cause the building surveyor will not be in receipt of any amount of levy during that period. (7B) An application and an exemption under subsection (7A) must be in writing. (8) The Commission may recover money payable to the Building Administration Fund under subsection (7) as a debt due to the Commission in any court of competent jurisdiction. (9) The levy is not payable in respect of an application for a building permit made before the commencement of this section.

S. 201(7B) inserted by No. 34/1997 s. 17(2).

S. 201(10) inserted by No. 26/2001 s. 13(2).

(10) The additional levy imposed by subsection (1A) is not payable in respect of an application for a building permit made before the commencement of section 13 of the House Contracts Guarantee

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(HIH) Act 2001. (11) The additional building levy imposed by subsection (1C) is not payable in respect of an application for a building permit made before 1 July 2002. * * * * *
S. 201(11) inserted by No. 36/2002 s. 14(3).

Ss 202–204 repealed by No. 31/1994 s. 4(Sch. 2 item 9).

205 Staff and other appointed persons (1) There may be appointed or employed— (a) a Registrar of the Building Appeals Board; and (b) a Registrar of the Building Practitioners Board; and (c) any other staff and persons necessary for the purposes of this Act. (2) A person appointed or employed under subsection (1) may at the discretion of the Commission be appointed or employed— (a) under Part 3 of the Public Administration Act 2004;
S. 205(2)(a) substituted by No. 46/1998 s. 7(Sch. 1), amended by No. 108/2004 s. 117(1) (Sch. 3 item 21.1).

(b) as an employee of the Commission; or (c) under contract with the Commission. (3) A person appointed or employed under subsection (1) to whom subsection (2)(b) or (c) applies is not subject to the Public Administration Act 2004 in respect of that employment.
S. 205(3) amended by No. 46/1998 s. 7(Sch. 1), substituted b y No. 108/2004 s. 117(1) (Sch. 3 item 21.2).

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s. 206

Division 3—The Building Advisory Council 206 Establishment of Council There is established by this Act a Council to be called the Building Advisory Council. 207 Membership and procedure11 (1) The members of the Building Advisory Council are to be appointed by the Minister. (2) Of those members—
S. 207(2)(a) substituted by No. 18/1998 s. 7(1). S. 207(2)(aa) inserted by No. 18/1998 s. 7(1).

(a) one is to be a person appointed as chairperson of the Council; and (aa) one is to be the Commissioner; and

S. 207(2)(ab) inserted by No. 75/1998 s. 4(1).

(ab) one is to be the Plumbing Industry Commissioner; and (b) one is to be nominated by the Royal Australian Institute of Architects, Victorian Chapter; and (c) one is to be nominated by the Master Builders Association of Victoria; and (d) one is to be nominated by the Housing Industry Association, Victorian/Tasmanian Division; and

(e) one is to be nominated by the Property Council of Australia, Victoria Division; and (f) one is to be nominated by the Australian

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Institute of Building Surveyors, Victorian Chapter; and (g) one is to be a person who in the Minister's opinion, has experience in the building industry or in matters related to that industry; and (h) at least one is to be an Australian lawyer (within the meaning of the Legal Profession Act 2004) of at least 5 years' standing; and
S. 207(2)(g) inserted by No. 71/1995 s. 18(1), amended by No. 68/2001 s. 8(3)(a). S. 207(2)(h) inserted by No. 68/2001 s. 8(3)(b), substituted b y No. 18/2005 s. 18(Sch. 1 item 10.3). S. 207(2)(i) inserted by No. 68/2001 s. 8(3)(b).

(i) at least one is to be a person who, in the Minister's opinion, is able to represent the interests of users of the services of building practitioners. (3) If there is to be a vacancy in the membership of the Building Advisory Council, the Minister may request the relevant organisation to make a nomination for appointment within a period specified in the request. (4) The Minister may appoint an otherwise eligible person to be a member of the Building Advisory Council without a nomination, if that request is not complied with. (5) Parts 1 and 2 (except for clause 8) of Schedule 3 apply to the membership and procedure of the Building Advisory Council in the same way as they apply to a Board. (6) The Building Advisory Council is deemed to be the same body despite the change in its membership arising from the amendment of this section by section 7 of the Building (Amendment) Act 1998.

S. 207(6) inserted by No. 18/1998 s. 7(2).

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s. 208

208 Function of the Council The function of the Building Advisory Council is to advise the Minister on any of the following—
S. 208(a) substituted by No. 75/1998 s. 4(2).

(a) the administration of this Act and the regulations, other than Part 12A and the regulations made under that Part; (b) the impact on the building regulations system established by this Act of regulations made under any other Act; (c) issues relating to the building permit levy; (d) any matter referred to it by the Minister. Division 4—The Building Regulations Advisory Committee 209 Establishment of Committee There is established by this Act a Committee to be called the Building Regulations Advisory Committee. 210 Membership and procedure12 (1) The members of the Building Regulations Advisory Committee are to be appointed by the Minister. (2) Of those members— (a) one is to be the Commissioner, who is to be chairperson of the Committee;

S. 210(2)(b) amended by No. 101/1994 s. 64.

(b) one is to be nominated by the Minister administering Part 4 of the Project Development and Construction Management Act 1994; (c) one is to be nominated by the Minister administering the Country Fire Authority Act 1958 and the Minister administering the Metropolitan Fire Brigades Act 1958; (d) one is to be nominated by the Melbourne

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s. 210

City Council and is to be a person who, in the Minister's opinion, has experience in matters provided for by this Act or the regulations; (e) one is to be chosen from a list of 3 names submitted by the Royal Australian Institute of Architects, Victorian Chapter; (f) one is to be chosen from a list of 3 names submitted by the Institution of Engineers, Australia, Victoria Division; (g) one is to be chosen from a list of 3 names submitted by the Master Builders Association of Victoria; (h) one is to be chosen from a list of 3 names submitted by the Housing Industry Association, Victoria/Tasmania Division; (i) one is to be chosen from a list of 3 names submitted by the Property Council of Australia, Victoria Division; (j) one is to be chosen from a list of 3 names submitted by the Municipal Association of Victoria; (k) two are to be chosen from a list of 6 names submitted by the Australian Institute of Building Surveyors, Victorian Chapter; (l) one is to be a person who in the Minister's opinion, has experience in the building industry or in matters related to that industry;
S. 210(2)(l) inserted by No. 71/1995 s. 19(1), amended by No. 68/2001 s. 8(4)(a). S. 210(2)(m) inserted by No. 68/2001 s. 8(4)(b), substituted b y No. 18/2005 s. 18(Sch. 1 item 10.4). S. 210(2)(h) amended by No. 34/1997 s. 30(a). S. 210(2)(i) amended by No. 34/1997 s. 18.

(m) at least one is to be an Australian lawyer (within the meaning of the Legal Profession Act 2004) of at least 5 years' standing;

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S. 210(2)(n) inserted by No. 68/2001 s. 8(4)(b).

(n) at least one is to be a person who, in the Minister's opinion, is able to represent the interests of users of the services of building practitioners. (3) If there is or there is to be a vacancy in the membership of the Building Regulations Advisory Committee under subsection (2)(b) to (k), the Minister may, as appropriate, request the relevant Minister to make a nomination for appointment or the relevant organisation to submit a list of names within a period specified in the request. (4) The Minister may appoint an otherwise eligible person to be a member of the Committee without a nomination or list of names, if that request is not complied with. (5) Parts 1 and 2 (except for clause 8) of Schedule 3 apply to the membership and procedure of the Building Regulations Advisory Committee in the same way as they apply to a Board. 211 Functions of Committee The following are the functions of the Building Regulations Advisory Committee—

S. 211(a) amended by No. 54/2007 s. 11(2).

(a) to advise the Minister on draft regulations prepared under this Act, and in particular the extent to which they promote the objectives of this Act, are cost effective and are necessary; (b) to accredit building products, construction methods or designs, components or systems connected with building work for the purposes of this Act and the building regulations; (c) to advise the Minister on any matter referred

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s. 212

to it by the Minister; (d) any other functions conferred by or under this or any other Act. Division 5—Role of councils 212 Council to administer building provisions in its municipal district (1) Except where otherwise expressly provided in this Act or the building regulations, a council is responsible for the administration and enforcement of Parts 3, 4, 5, 7 and 8 and the building regulations in its municipal district. (2) Nothing in this section limits a council's powers to act outside its municipal district. 213 Appointment of municipal building surveyor A municipal council must not appoint, employ or nominate a person as its municipal building surveyor unless the person is registered as a building surveyor (unlimited). 214 Agreements with other councils or the Commission (1) Despite anything to the contrary in the Local Government Act 1989, a council may enter into an agreement with any other council or with the Commission in respect of the carrying out by the Commission or the municipal building surveyor of the second council of any of the functions under this Act or the regulations of the municipal building surveyor of the first council. (2) If a council enters into an agreement with another council under subsection (1) in respect of the carrying out of the functions of a municipal building surveyor, the municipal building surveyor of the second council is deemed, while the agreement is in force, to be the municipal
S. 213 repealed by No. 76/1997 s. 23, new s. 213 inserted by No. 36/2008 s. 12.

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s. 216

building surveyor of the first council for the purpose of carrying out the functions set out in the agreement. (3) If the Commission enters into an agreement with a council under subsection (1) in respect of the carrying out of the functions of a municipal building surveyor, the Commission is deemed, while the agreement is in force, to be the municipal building surveyor of that council for the purpose of carrying out the functions set out in the agreement. (4) Nothing in this section prevents the Commission or a council from entering into agreements in respect of the carrying out of the functions of the municipal building surveyor of more than one council. 215 Agreement with private building surveyor (1) Despite anything to the contrary in the Local Government Act 1989, a council may enter into an agreement with a private building surveyor to carry out the functions under this Act and the regulations of the municipal building surveyor of the council. (2) A private building surveyor who enters into an agreement with a council under subsection (1)— (a) is deemed to be the municipal building surveyor of that council for the purpose of carrying out the functions set out in the agreement; and (b) despite anything to the contrary in the Local Government Act 1989, is not a member of staff of the council. 216 Council to charge commercial rates for work outside municipal district (1) If a council or its municipal building surveyor

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carries out any function under this Act or the building regulations in respect of a building or land outside the council's municipal district, then despite anything to the contrary in the Local Government Act 1989, the fees or charges payable to the council or municipal building surveyor in respect of the carrying out of that function must be not less than the total cost of carrying out that function. (2) Subsection (1) does not apply to a function carried out by a council or municipal building surveyor on behalf of another council or municipal building surveyor. 216A Exemption from functions in relation to certain permits (1) A council may apply to the Minister to exempt its municipal building surveyor from any requirement to consider applications for building permits for building work other than prescribed domestic building work. (2) The Minister may grant the exemption if the Minister is satisfied that sufficient private building surveyors are available to consider those applications for building permits in relation to land in the council's municipal district. (3) If the Minister grants an exemption in respect of a municipal building surveyor, then, despite anything to the contrary in this Act and while the exemption is in force, an application cannot be made to the municipal building surveyor under Part 3 for a building permit for building work other than prescribed domestic building work. (4) The Minister may at any time revoke an exemption given under this section. (5) The Minister must cause notice of any exemption or revocation under this section to be published in
S. 216A inserted by No. 18/1998 s. 8.

216B Delegation by municipal building surveyor (1) The municipal building surveyor of a council may, by instrument, delegate any of his or her functions under this Act or the regulations, except this power of delegation, to any person employed or engaged by the council who is registered as a building surveyor (unlimited) under Part 11. (2) The municipal building surveyor of a council may, by instrument, delegate any of his or her functions under this Act or the regulations to the extent that they relate to buildings up to 3 storeys in height with a maximum floor area of 2000 square metres, except this power of delegation, to any person employed or engaged by the council who is registered as a building surveyor (limited) under Part 11. 216C Role of municipal building surveyor outside municipal district (1) A municipal building surveyor of a council, with the consent of that council, may be appointed to carry out all or any of the following functions under this Act in respect of land outside the municipal district of that council— (a) the issuing of building permits; (b) the carrying out of inspections of buildings and building work under Part 4; (c) the issuing of occupancy permits and temporary approvals under Part 5. (2) In addition to subsection (1), a municipal building surveyor of a council who is appointed pursuant to subsection (1) may carry out outside the municipal district of that council any other functions conferred on a private building surveyor by this Act or the regulations.

S. 216B(2) inserted by No. 36/2008 s. 13(2).

S. 216C inserted by No. 36/2008 s. 14.

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(3) A municipal building surveyor may use the title of municipal building surveyor in carrying out functions referred to in this section. (4) Sections 78 to 83 apply to a municipal building surveyor who is appointed to carry out functions pursuant to subsection (1) as if— (a) a reference in sections 78(1), 78(3) and 78(4), 79(1), 79(2), 80, 81(1) to 81(3) and 83 to a private building surveyor were a reference to the municipal building surveyor; and (b) a reference in sections 78(2), 79(3), 81(4), 82(1)(b) and 82(3) to a private building surveyor (where first occurring) were a reference to the municipal building surveyor; and (c) a reference in section 82(2) to a private building surveyor (where first and thirdly occurring) were a reference to the municipal building surveyor; and (d) a reference in sections 81(4) and 82 to a private building surveyor's functions were a reference to the municipal building surveyor's functions; and (e) a reference to a function set out in section 76 of the Act were a reference to a function set out in subsection (1). (5) Nothing in this section limits or affects the operation of sections 191, 192, 214, 215, 216 or 221. (6) The enactment of this section does not affect the validity of any permit issued by a municipal building surveyor of a council outside the municipal district of that council before that enactment.

(1) Subject to subsection (2), Parts 2, 3, 4, 5, 7, 9, 10, 11, and 12A and section 201 and this Division— (a) bind the Crown in right of the State of Victoria and, so far as the legislative power of Parliament permits, the Crown in all its other capacities; and (b) apply to a public authority. (2) Section 134 does not apply to the Crown or a public authority unless an occupancy permit or certificate of final inspection is obtained by the Crown or the public authority in respect of the building work concerned.

(2A) Despite anything to the contrary in this Act, a provision of this Act applies to a lessee or licensee of Crown land even if the provision does not bind the Crown. (2B) Despite anything to the contrary in this Act, Part 8 applies to a lessee or licensee of Crown land as if a reference in that Part to the "owner" were a reference to the lessee or licensee. (3) If the Crown in any of its capacities or a public authority chooses to proceed under a provision of this Act that would otherwise not be binding on the Crown or public authority, it is bound by— (a) that provision; and (b) any provision of this Act conferring jurisdiction on the Building Appeals Board in respect of that provision; and (c) any other provision of this Act or regulations

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having effect for the purposes of a provision referred to in paragraph (a) or (b). (4) Nothing in subsections (1) to (3) makes the Crown or a public authority liable for any offence under this Act or the regulations. (5) Nothing in subsections (1) to (3) makes the Crown liable to pay any fee or charge except the building permit levy and the fees payable under Part 10. * * * * *
S. 217(5) substituted by No. 34/1997 s. 19(3). S. 218 repealed by No. 34/1997 s. 20.

219 Municipal building surveyor not required to inspect building work Despite anything in this Act or the building regulations, a municipal building surveyor is not required to inspect building work carried out by or on behalf of the Crown or a public authority. 220 Guidelines for Crown and public authority buildings (1) The Minister administering section 8 of the Financial Management Act 1994, after consulting the Minister administering this Act, may prepare and publish guidelines to promote better building standards for buildings owned by the Crown or a public authority other than a Council. (2) The guidelines may apply to existing or new buildings. (3) If a Minister is required to table before Parliament an annual report with respect to the operations of a department or public authority, the Minister must ensure that the report includes a statement about the department's or authority's progress in implementing the guidelines during the period to which the report relates.
S. 220(1) amended by No. 28/2007 s. 3(Sch. item 3).

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221 Authorised building surveyor (1) The functions of a municipal building surveyor under any provision of this Act or the regulations which, by virtue of this Division, binds the Crown or a public authority— (a) in relation to building work carried out or to be carried out by or on behalf of the Crown or that public authority; or (b) in relation to any building owned or occupied by or proposed to be occupied by the Crown or that public authority— shall be carried out by a building surveyor registered under Part 11 and authorised by the Crown or that public authority. (2) The Crown or a public authority may in writing authorise a building surveyor registered under Part 11 to carry out the functions referred to in subsection (1). _______________

221A Purpose of this Part The purpose of this Part is to regulate plumbing work with the aim of ensuring that it is carried out safely and competently. By and large this Part operates separately from the rest of this Act. 221B Definitions applying to this Part (1) In this Part— * * * * *

S. 221B inserted by No. 39/1996 s. 5.

S. 221B(1) def. of Board repealed by No. 75/1998 s. 5(a)(i).

class of plumbing work means a class of plumbing work specified by the regulations; class of specialised plumbing work means a class of specialised plumbing work specified by the regulations or in a declaration under section 221ZZZU;
S. 221B(1) def. of Commission inserted by No. 75/1998 s. 5(a)(ii).

Commission means the Plumbing Industry Commission established by section 221ZZR;

compliance auditor means a person appointed as a compliance auditor under section 221ZZY; compliance certificate means a certificate referred to in section 221ZH; emergency plumbing order means an order issued

licensed plumber means a person who is licensed by the Plumbing Industry Commission under section 221M or 221Q to carry out a particular class or type of plumbing work and includes a person who is temporarily licensed to carry out that work under section 221W, but does not include a person whose licence is suspended; plumbing apprentice means an apprentice within the meaning of the Education and Training Reform Act 2006 in a plumbing trade;

Plumbing Code of Australia means the Plumbing Code of Australia published by the National Plumbing Regulators Forum as amended or remade from time to time;

plumbing inspector means a person appointed as a plumbing inspector under section 221ZZY; plumbing laws means any provision in any of the following that regulates the carrying out of plumbing work— (a) this Part; and
S. 221B(1) def of plumbing laws amended by No. 99/1997 s. 121(1).

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(b) the Gas Safety Act 1997; and (c) the Water Act 1989 and the Water Industry Act 1994; and (d) any regulations made under this Part or any Act listed in paragraph (b) or (c); plumbing notice means a notice issued under section 221ZY; plumbing order means an order issued under section 221ZZB; rectification notice means a notice issued under section 221ZW;
S. 221B(1) def. of registered plumber amended by No. 75/1998 s. 5(a)(iii).

registered plumber means a person who is registered by the Plumbing Industry Commission under section 221O, 221P or 221R to carry out a particular class or type of plumbing work and includes a person who is temporarily registered to carry out that work under section 221W, but does not include a person whose registration is suspended; Registrar means any person appointed or employed to be the Registrar of the Commission under section 221ZZX; required insurance means the insurance required by an order made under section 221ZQ;

S. 221B(1) def. of Registrar substituted by No. 75/1998 s. 5(a)(iv).

specialised plumbing work means any plumbing work— (a) that the regulations state is specialised plumbing work; or (b) that is declared by the Minister to be

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specialised plumbing work under section 221ZZZU; water authority means— (a) a company that holds a water licence or a water and sewerage licence under the Water Industry Act 1994; or (b) an Authority that has a water district or a sewerage district under the Water Act 1989. (2) A reference in this Part (other than in section 221O or 221R) to registration includes a reference to provisional registration, unless a contrary intention appears or the context otherwise requires. (3) For the purposes of this Part, a person supervises the carrying out of work only— (a) if the work is carried out in his or her presence, at his or her direction and on his or her behalf; or (b) if the following conditions are met— (i) the work is carried out on his or her behalf; and (ii) he or she specifies the method and manner in which the work is to be carried out; and (iii) he or she inspects the carrying out of the work as often as is necessary to ensure that the work is carried out safely and competently, having regard to the nature of the work, the risks involved in the work and the knowledge and experience of the person carrying out the work. (4) A reference in Division 7 to "he or she" or to
S. 221B(3) substituted by No. 75/1998 s. 7(1).

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s. 221C

"him or her" is to be read as including a reference to "it", if the context permits.
S. 221C inserted by No. 39/1996 s. 5.

(1) In this Part, plumbing work means any plumbing work that the regulations state is work to which this Part applies. (2) Any reference to plumbing work in this Part is to be read as if it included a reference to gasfitting and draining work, unless a contrary intention appears or the context otherwise requires. (3) In all Divisions other than Divisions 2 and 3, a reference to plumbing work includes a reference to specialised plumbing work, unless a contrary intention appears or the context otherwise requires. Division 2—Restrictions concerning the carrying out of plumbing work

221D Plumbing work only to be carried out by licensed or registered plumbers (1) A person must not carry out any plumbing work of a particular class or type unless he or she is licensed or registered by the Commission to carry out work of that class or type. P 50 penalty units. (2) Despite subsection (1), a person who is not licensed or registered by the Commission may— (a) repair a tap in any dwelling that the person owns and occupies; and (b) carry out any other plumbing work that the

S. 221D(2) amended by No. 75/1998 s. 5(b).

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regulations state is plumbing work that may be carried out by a person who is not licensed or registered. (3) Subsection (2)(a) does not permit a person to repair any thermostatic mixing valve, tempering valve or backflow prevention device. (4) Despite subsection (1), a person who is being trained to carry out work that may be carried out by the holder of a restricted licence may carry out that work without being licensed or registered by the Commission if the work is carried out under the supervision of a person who is licensed to carry out that type of work. (5) Despite subsection (1)— (a) a sheetmetal worker, first class may carry out sheetmetal work in connection with the manufacture, installation, maintenance or repair of ventilation or air conditioning plant or equipment; (b) a metal worker may carry out pipework in connection with the fabrication, installation, maintenance or repair of industrial pipework; * * * * *
S. 221D(5)(c) repealed by No. 75/1998 s. 8(a). S. 221D(4) amended by No. 75/1998 ss 5(b), 7(2).

S. 221D(5) amended by No. 75/1998 s. 5(b).

(d) an apprentice may carry out any work referred to in paragraph (a) or (b) under the supervision of a person referred to in that paragraph; (e) a plumbing apprentice acting under the supervision of a licensed plumber may carry out plumbing work— without being licensed or registered by the Commission.

221E Restrictions concerning work for which compliance certificate required (1) Unless a person is licensed to carry out a particular class or type of plumbing work or specialised plumbing work, he or she must not carry out any work of that class or type for which a compliance certificate is required. P 50 penalty units. (2) Despite subsection (1), a person who is registered to carry out a particular class or type of plumbing work or specialised plumbing work may carry out any work of that class or type for which a compliance certificate is required under the supervision of a licensed plumber who is authorised to carry out that class or type of work. (2A) Despite subsection (1), a plumbing apprentice may carry out a particular class or type of plumbing work for which a compliance certificate is required under the supervision of a licensed plumber who is authorised to carry out that class or type of work. (3) Despite subsection (1) a person who is authorised under an accepted safety case under the Gas Safety Act 1997 and registered under section 221R to carry out a particular class or type of gasfitting work for which a compliance certificate is required may carry out that work without being licensed by the Board. 221F Restriction concerning specialised plumbing work

(1) A person must not carry out any class or type of specialised plumbing work unless he or she is licensed or registered by the Commission to carry out that class or type of work. P 120 penalty units. (2) Despite subsection (1) a person who is authorised under an accepted safety case under the Gas Safety Act 1997 and registered under section 221R to carry out a particular class or type of gasfitting work which is specialised plumbing work may carry out that work without being licensed by the Board to carry out that class or type of work. 221FA Plumbing work must comply with this Part and regulations A licensed plumber or a registered plumber must not carry out any plumbing work or specialised plumbing work that does not comply with this Part or the regulations made under this Part. P 50 penalty units.

S. 221F(1) amended by No. 31/2007 s. 5.

S. 221F(2) inserted by No. 99/1997 s. 121(3).

S. 221FA inserted by No. 31/2007 s. 6.

221G Obligations on licensed plumbers concerning their agents (1) A licensed plumber must not permit a person to carry out on his or her behalf, or direct a person to carry out, any plumbing work or specialised plumbing work— (a) that is of a class or type in respect of which the person is not licensed or registered under this Part; or

S. 221G inserted by No. 39/1996 s. 5.

208

s. 221G

(b) that is defective in workmanship or that involves the use of materials that the licensed plumber knows, or reasonably ought to know, are defective or that does not comply with the plumbing laws. P
S. 221G(2) amended by No. 75/1998 s. 7(2).

50 penalty units.

(2) However, subsection (1)(a) does not apply to plumbing work of a particular class or type carried out by a plumbing apprentice under the supervision of a licensed plumber who is licensed or registered to carry out that class or type of work. 221H People involved in a plumbing business need not be licensed or registered (1) A person does not carry out any plumbing work or specialised plumbing work for the purposes of this Part merely because he, she or it owns, operates, manages or otherwise participates in, is employed by, or shares in the profits of, any business that carries out plumbing work or specialised plumbing work. (2) A person may employ, or supply the services of, licensed and registered plumbers without being licensed or registered by the Commission. (3) A person who owns, operates, manages or otherwise participates in, is employed by, or shares in the profits of, any business that carries out plumbing work or specialised plumbing work must not cause or permit any plumbing work or specialised plumbing work to be carried out on behalf of the business by a person who is not permitted by this Part to carry out that work. Penalty applying to this subsection: 50 penalty units.

S. 221H inserted by No. 39/1996 s. 5.

S. 221H(2) amended by No. 75/1998 s. 5(b).

209

s. 221I

221I Person must not use the title "plumber" or "plumbing practitioner" unless licensed or registered

(1) A person must not use or take the title "plumber" or "plumbing practitioner" in any context relating to the plumbing industry unless the person is registered or licensed to carry out at least one class or type of plumbing work under this Part. P 50 penalty units. (2) A person must not— (a) use or take the title "licensed plumber" or "licensed plumbing practitioner"; or (b) hold himself or herself out as being licensed under this Part— unless he or she is licensed to carry out at least one class or type of plumbing work under this Part. P 50 penalty units.

S. 221I(1) amended by No. 36/2008 s. 17(2).

S. 221I(2)(a) amended by No. 36/2008 s. 17(3).

(3) A person must not— (a) use or take the title "registered plumber" or "registered plumbing practitioner"; or (b) hold himself or herself out as being registered under this Part— unless he or she is registered to carry out at least one class or type of plumbing work under this Part.
S. 221I(3)(a) amended by No. 36/2008 s. 17(4).

210

s. 221J

P
S. 221J inserted by No. 39/1996 s. 5.

50 penalty units.

221J Person must not use the title "drainer" unless licensed or registered (1) A person must not use or take the title "drainer" in any context relating to the plumbing industry unless the person is authorised to carry out draining work under this Part. P 50 penalty units. (2) A person must not use or take the title "licensed drainer" unless he or she is licensed to carry out draining work under this Part. P 50 penalty units. (3) A person must not use or take the title "registered drainer" unless he or she is registered to carry out draining work under this Part. P 50 penalty units.

S. 221K inserted by No. 39/1996 s. 5.

221K Person must not use the title "gasfitter" unless licensed or registered (1) A person must not use or take the title "gasfitter" in any context relating to the plumbing industry unless the person is authorised to carry out gasfitting work under this Part. P 50 penalty units. (2) A person must not use or take the title "licensed gasfitter" unless he or she is licensed to carry out gasfitting work under this Part. P 50 penalty units. (3) A person must not use or take the title "registered gasfitter" unless he or she is registered to carry out gasfitting work under this Part. P 50 penalty units.

S. 221L inserted by No. 39/1996 s. 5.

221L Exceptions to sections 221I–221K

211

s. 221M

s. 221L

(1) Sections 221I, 221J and 221K do not apply to— (a) an organisation or member of staff of an organisation for the time being exempted from this section by the Commission ; or (b) the use of a title by a person who is authorised to use that title outside Victoria by a person or body regulating plumbing work if it is made clear in the use of the title that it does not relate to Victoria. (2) Sections 221I, 221J and 221K do not apply to the use of a title referred to in those sections by any business that carries out plumbing work or specialised plumbing work so long as— (a) at least one partner, director or employee of the business is entitled to use that title; or (b) any plumbing work that the business undertakes to have carried out, and that must be carried out by a person who is entitled to use that title, is carried out by such a person.
S. 221L(1)(a) amended by No. 75/1998 s. 5(b).

Division 3—The licensing and registration of plumbers 221M Licensing as a plumber (1) To be able to be licensed to carry out a particular class of plumbing work, a person must— (a) be eligible to be registered as a plumber with respect to that class of plumbing work; and (b) either— (i) have the relevant qualifications and experience required by the regulations;
S. 221M inserted by No. 39/1996 s. 5.

212

s. 221N

or
S. 221M(1) (b) (ii) amended by No. 75/1998 s. 5(b).

(ii) satisfy the Commission that he or she has knowledge and competence at least equal to that that a person who has the qualifications and experience required by the regulations would have; and (c) be covered by the required insurance. (2) The Commission must license a person to carry out a particular class of plumbing work if— (a) the person applies to be licensed in accordance with section 221T; and (b) it is satisfied that the person meets the requirements listed in subsection (1); and (c) the person pays the licence fee set out in the regulations.

(3) The Commission may license an eligible person to carry out 2 or more particular classes of plumbing work. (4) The Registrar must give each person who is licensed by the Commission a licence as evidence that the person is licensed to carry out a particular class, or particular classes, of plumbing work. 221N Endorsement to carry out specialised plumbing work (1) To be able to be licensed to carry out a particular class of specialised plumbing work, a person must — (a) be a licensed plumber in respect of a prescribed class of plumbing work; and (b) either—

S. 221N(1)(a) amended by No. 36/2008 s. 15(d).

S. 221N(1) (b)(i) amended by No. 34/1997 s. 30(b).

(i) have the relevant qualifications and experience required by the regulations

213

s. 221O

(or a declaration under section 221ZZZU); or (ii) satisfy the Commission that he or she has knowledge and competence at least equal to that that a person who has the qualifications and experience required by subparagraph (i) would have; and (c) be covered by the required insurance. (2) The Commission must license a person to carry out a particular class of specialised plumbing work if— (a) the person applies to be licensed in accordance with section 221T; and (b) it is satisfied that the person meets the requirements listed in subsection (1); and (c) the person pays the endorsement fee set out in the regulations. (3) The Commission may license an eligible person to carry out 2 or more particular classes of specialised plumbing work.
S. 221N(3) amended by No. 75/1998 s. 5(b). S. 221N(2) amended by No. 75/1998 s. 5(b). S. 221N(1) (b) (ii) amended by No. 75/1998 s. 5(b).

(4) If the Commission licenses a person to carry out a particular class of specialised plumbing work, the Registrar must endorse the licence issued to the person in respect of his or her licensing under section 221M with a statement to the effect that the person is also licensed to carry out that class of specialised plumbing work. 221O Registration as a plumber (1) To be able to be registered to carry out a particular class of plumbing work, a person must either— (a) have the relevant qualifications and

(b) satisfy the Commission that he or she has knowledge and competence at least equal to that that a person who has the qualifications and experience required by the regulations would have. (2) The Commission must register a person to carry out a particular class of plumbing work if— (a) the person applies for registration in accordance with section 221T; and (b) it is satisfied that the person meets one or other of the requirements listed in subsection (1); and (c) the person pays the registration fee set out in the regulations.

(3) The Commission may register an eligible person with respect to 2 or more particular classes of plumbing work. (4) The Registrar must give each person who is registered by the Commission a registration document as evidence that the person is registered to carry out a particular class, or particular classes, of plumbing work. 221OA Endorsement to carry out specialised plumbing work—registered plumbers (1) To be able to be registered to carry out a particular class of specialised plumbing work, a person must — (a) be a registered plumber in respect of a prescribed class of plumbing work; and (b) either— (i) have the relevant qualifications and

S. 221OA inserted by No. 31/2007 s. 7.

S. 221OA(1) (a) amended by No. 36/2008 s. 15(d).

215

experience required by the regulations (or a declaration under section 221ZZZU); or (ii) satisfy the Commission that he or she has knowledge and competence at least equal to that that a person who has the qualifications and experience required by subparagraph (i) would have. (2) The Commission must register a person to carry out a particular class of specialised plumbing work if— (a) the person applies to be registered in accordance with section 221T; and (b) it is satisfied that the person meets the requirements listed in subsection (1); and (c) the person pays the endorsement fee set out in the regulations. (3) The Commission may register an eligible person with respect to 2 or more particular classes of specialised plumbing work. (4) If the Commission registers a person to carry out a particular class of specialised plumbing work, the Registrar must endorse the registration document given to the person in respect of his or her registration under section 221O with a statement to the effect that the person is also registered to carry out that class of specialised plumbing work. (5) A person who is registered to carry out a particular class of specialised plumbing work under this section must not, unless otherwise exempted by the Commission, do any specialised plumbing work of that class unless that work is carried out under the supervision of a person who is licensed to carry out work of that class. P 20 penalty units.
S. 221OA(4) amended by No. 36/2008 s. 18(3).

(1) The Commission may provisionally register a person to carry out a particular class of plumbing work or specialised plumbing work if— (a) the person applies for provisional registration in accordance with section 221T and he or she— (i) is training to be qualified to carry out that class of work; and (ii) is a licensed or registered plumber with respect to another class of plumbing work; or

S. 221P(1)(b) amended by No. 75/1998 s. 5(b).

(b) the Commission is satisfied that the person— (i) has sufficient knowledge and experience to carry out that class of work competently and safely; or (ii) will be able to carry out that work competently and safely if the person complies with the conditions that the Commission imposes on the registration. (2) A person who is provisionally registered must not, unless otherwise exempted by the Commission, do any plumbing work or specialised plumbing work of the class to which the provisional registration applies unless that work is carried out under the supervision of a person who is licensed to carry out work of that class. P 20 penalty units. (3) The Commission may provisionally register an eligible person with respect to 2 or more particular classes of plumbing work or specialised plumbing

S. 221P(1) (b) (ii) amended by No. 75/1998 s. 5(b).

S. 221P(2) amended by Nos 75/1998 s. 5(b), 36/2008 s. 16.

S. 221P(3) amended by No. 75/1998 s. 5(b).

217

s. 221Q

work. (4) On receiving any provisional registration fee required by the regulations, the Registrar must give each person who is provisionally registered by the Commission a provisional registration document as evidence that the person is provisionally registered to carry out a particular class, or particular classes, of plumbing work or specialised plumbing work. (5) A provisional registration expires 1 year after it is granted, but may be renewed. 221Q Restricted licences
S. 221Q inserted by No. 39/1996 s. 5. S. 221P(4) amended by Nos 75/1998 s. 5(b), 36/2008 s. 18(4).

(1) The Commission may license a person to carry out particular types of work that fall within a class of plumbing work or specialised plumbing work if — (a) the person applies for the licence in accordance with section 221T; and

S. 221Q(1) amended by No. 75/1998 s. 5(b).

(b) it is satisfied that the person— (i) has sufficient knowledge and experience to carry out that work competently and safely; and (ii) is covered by the required insurance in respect of that work. (2) On receiving any restricted licence fee required by the regulations, the Registrar must give each person who is licensed by the Commission under this section a licence as evidence that the person is
S. 221Q(2) amended by Nos 75/1998 s. 5(b), 36/2008 s. 18(1).

218

s. 221R

licensed to carry out a particular type of work and must ensure that the word "restricted" is prominently displayed on the licence and that the licence states what work the holder of the licence may carry out.
S. 221R inserted by No. 39/1996 s. 5.

221R Restricted registration

S. 221R(1) amended by No. 75/1998 s. 5(b).

(1) The Commission may register a person to carry out particular types of work that fall within a class of plumbing work or specialised plumbing work if — (a) the person applies for restricted registration in accordance with section 221T; and

S. 221R(1)(b) substituted by No. 99/1997 s. 121(4).

(b) it is satisfied that the person— (i) has sufficient knowledge and experience to carry out that work competently and safely; or (ii) is authorised under an accepted safety case under the Gas Safety Act 1997 to carry out that work.

S. 221R(2) amended by Nos 75/1998 s. 5(b), 36/2008 s. 18(5).

(2) On receiving any restricted registration fee required by the regulations, the Registrar must give each person who is registered by the Commission under this section a registration document as evidence that the person is registered to carry out a particular type of work and must ensure that the word "restricted" is prominently displayed on the registration document and that the registration document states what work the holder of the registration document may carry out. 221S Commission may refuse to license or register convicted people etc.

S. 221S inserted by No. 39/1996 s. 5.

219

s. 221S

(1) Despite sections 221M(2), 221N(2), 221O(2) and 221OA(2), the Commission may refuse to license or register a person who— (a) has been convicted of any offence involving fraud, dishonesty, drug trafficking or violence that was punishable by imprisonment for 6 months or more; or (b) has been convicted of an offence under any law regulating plumbing work or specialised plumbing work; or (c) has had his or her authorisation to carry out plumbing work or specialised plumbing work suspended or cancelled for any reason other than his or her failure to renew that authorisation; or (d) is an insolvent under administration; or (e) has been convicted of an offence against section 12, 16, 17, 18, 20 or 22 of the Fair Trading Act 1985 or section 10, 11, 12, 17, 19 and 21 of the Fair Trading Act 1999 or section 53, 55, 55A, 56, 58 or 60 of the Trade Practices Act 1974 of the Commonwealth. (2) Despite sections 221M(2), 221N(2), 221O(2) and 221OA(2), the Commission must refuse to licence or register a person who is for the time being disqualified by an order of any regulatory body from acting as a licensed or registered plumber (or an equivalent occupation under the jurisdiction of the regulatory body). (3) This section applies regardless of where the conviction, suspension, cancellation, insolvency or disqualification occurred. 221T Application for licensing or registration as a

S. 221S(1) amended by Nos 75/1998 s. 5(b), 31/2007 s. 8.

S. 221S(1)(e) amended by No. 17/1999 s. 22(5).

S. 221S(2) amended by Nos 75/1998 s. 5(b), 31/2007 s. 8.

S. 221T inserted by No. 39/1996 s. 5.

220

s. 221T

plumber
S. 221T(1) amended by No. 75/1998 s. 5(b).

(1) A natural person may apply to the Commission to be licensed or registered under this Part. (2) The application must—

(a) be in the form required by the Commission; and (b) contain the information required by the Commission to enable it to decide whether to grant the application; and (c) be accompanied by the relevant application fee set out in the regulations. (3) In the case of an application for a licence, the person applying must also include proof that he or she is (or will be if he or she is granted a licence) covered by the required insurance.

S. 221T(4) inserted by No. 75/1998 s. 9(1).

(4) If required by the Commission, an application must also be accompanied by a photograph of the applicant that is of the size and in the form specified by the Commission. (5) The Commission may use the photograph provided for the purposes of identification of the plumber and for inclusion in the plumber's licence or registration document. 221U Commission may require further information

S. 221T(5) inserted by No. 36/2008 s. 19(1).

S. 221U inserted by No. 39/1996 s. 5.

S. 221U(1) amended by No. 75/1998 s. 5(b).

(1) The Commission may ask a person applying to be licensed or registered for more information concerning the application if it is reasonably

221

s. 221U

necessary to help it to decide whether to grant the application. (2) The Commission may refuse to license or register a person if he or she does not give it the extra information asked for within a reasonable time of being asked for the information. 221V Offence to give false information A person must not make any written or oral statement to the Commission in relation to an application for a licence or registration, or for the renewal of a licence or registration, that the person knows, or ought reasonably to know, is false. P 50 penalty units.
S. 221W inserted by No. 39/1996 s. 5. S. 221U(2) amended by No. 75/1998 s. 5(b).

S. 221V inserted by No. 39/1996 s. 5, amended by No. 75/1998 s. 5(b).

221W Temporary licence or registration (1) The Registrar may temporarily license or register a person under this Part if— (a) the person applies to be licensed or registered; and (b) the Registrar is satisfied that the person is likely to be licensed or registered by the Commission; and (c) the person pays any temporary licence fee or registration fee required by the regulations. (2) In exercising his or her powers under this section, the Registrar must comply with any directions of the Commission concerning the exercise of the powers. (3) The Registrar or the Commission may cancel a person's temporary licence or registration at any time, regardless of whether the Commission has considered the person's application. (4) A person's temporary licence or registration ends —
S. 221W(2) amended by No. 75/1998 s. 5(b).

(b) on the Commission approving or rejecting the person's application for licensing or registration; or (c) on the Registrar or Commission cancelling the licence or registration under subsection (3)— whichever happens first. 221X Commission may impose conditions on licensing or registering a person (1) The Commission may impose any conditions it thinks appropriate on licensing or registering a person, including a condition restricting the type of work a person may carry out within a class of work in respect of which the person is to be licensed or registered. (2) A person must comply with any conditions imposed on his or her licence or registration. P 50 penalty units.

(3) The Registrar must ensure that a licence or registration document states any conditions that the Commission has imposed with respect to the licence or registration document. 221Y Duplicate licences and registration documents The Registrar may issue a duplicate licence or registration document if—

S. 221Y(a) amended by No. 36/2008 s. 18(2).

(a) he or she is satisfied that the original licence or registration document has been lost, mutilated or destroyed; and (b) the person asking for the duplicate has paid

223

s. 221Y

the fee required by the regulations. 221Z How long licensing and registration last
S. 221Z inserted by No. 39/1996 s. 5.

(1) A person who is licensed to carry out a particular class of plumbing work or specialised plumbing work remains licensed to carry out that work for one year (or any lesser period specified by the Commission). (2) A person who is registered to carry out a particular class of plumbing work or specialised plumbing work remains registered to carry out that work for 3 years (or any lesser period specified by the Commission). (3) However, if a licensed or registered plumber is licensed or registered to carry out a second or subsequent class of plumbing work or specialised plumbing work, he or she only remains licensed or registered to carry out that latter form of plumbing work until his or her original licence or registration expires. (4) The Registrar must ensure that the fee payable in respect of— (a) a licence that is to remain in force for less than one year; or (b) registration that is to remain in force for less than 3 years— is reduced to take account of the shorter period for which that licensing or registration is to remain in force. (5) Subsections (1), (2) and (3) do not apply if the Commission suspends or cancels a person's licence or registration under this Part. 221ZA Plumbers must notify Commission of changes of

address etc. A licensed or registered plumber must notify the Commission in writing if he or she changes his or her residential or business address or has his or her business telephone number changed, and must do so within 14 days of the change. P
S. 221ZB inserted by No. 39/1996 s. 5. S. 221ZB(1) amended by No. 75/1998 s. 5(b).

5 penalty units.

221ZB Application for renewal of licence or registration as a plumber (1) A plumber wishing to renew his or her licence or registration must apply to the Commission for the renewal at least 2 months before the licence or registration expires. (2) The application for renewal must— (a) be in the form required by the Commission; and (b) contain the information required by the Commission to enable it to decide whether to grant the renewal. (3) In the case of an application for the renewal of a licence, the person applying must also include written proof to the Commission that he or she will be covered by the required insurance until the next anniversary of his or her licensing or, subject to such conditions as the Commission may impose, any lesser period approved by the Commission. (4) If required by the Commission, an application for renewal must also be accompanied by a photograph of the plumber that is of the size and in the form specified by the Commission.

(5) The Commission may use the photograph provided for the purposes of identification of the plumber and for inclusion in the plumber's renewed licence or registration document. 221ZC Commission may require further information

(1) The Commission may ask a person applying to have his or her licence or registration renewed for more information concerning the application if it is reasonably necessary to help it to decide whether to grant the application. (2) The Commission may refuse to renew a person's licence or registration if he or she does not give it the extra information asked for before the licence or registration expires. 221ZD Renewal of licence or registration

(1) The Commission must renew the licence or registration of a person to carry out a particular class of plumbing work or specialised plumbing work or to carry out a particular type of plumbing work if the person applies for the renewal in accordance with section 221ZB. (2) However, the Commission may refuse to renew the licence or registration of a person who has, since he or she was last licensed or registered by the Commission — (a) been convicted of any offence involving fraud, dishonesty, drug trafficking or violence that was punishable by imprisonment for 6 months or more; or (b) been convicted of an offence under any law regulating plumbing work or specialised

S. 221ZD(2) amended by No. 75/1998 s. 5(b).

226

s. 221ZD

plumbing work; or (c) had his or her authorisation to carry out plumbing work or specialised plumbing work suspended or cancelled for any reason other than his or her failure to renew that authorisation; or (d) become an insolvent under administration; or
S. 221ZD(2)(e) amended by No. 17/1999 s. 22(6).

(e) been convicted of an offence against section 12, 16, 17, 18, 20 or 22 of the Fair Trading Act 1985 or section 10, 11, 12, 17, 19 and 21 of the Fair Trading Act 1999 or section 53, 55, 55A, 56, 58 or 60 of the Trade Practices Act 1974 of the Commonwealth. (3) Despite subsection (1), the Commission must refuse to renew the licence or registration of a person who is for the time being disqualified by an order of any regulatory body from acting as a licensed or registered plumber (or an equivalent occupation under the jurisdiction of the regulatory body). (4) Subsections (2) and (3) apply regardless of where the conviction, suspension, cancellation, insolvency or disqualification occurred.

S. 221ZD(3) amended by No. 75/1998 s. 5(b).

S. 221ZD(5) amended by No. 75/1998 s. 5(b).

(5) Despite subsection (1), before renewing the licence or registration of a person, the Commission may require the person to pass to its satisfaction any examination specified by the Commission that relates to his or her competency to carry out the class of plumbing work or specialised plumbing work in respect of which he or she is licensed or registered. (6) However, the Commission may only require a person to pass such an examination if it imposes the same requirement on every member of a specified class of people applying for the renewal

S. 221ZD(6) amended by No. 75/1998 s. 5(b).

227

s. 221ZF

s. 221ZE

of their licences or registrations, and the person is a member of that class. (7) On receiving the relevant renewal fee set out in the regulations, the Registrar must give each person whose licence or registration has been renewed by the Commission proof in writing of that fact. 221ZE Commission may permit late renewals
S. 221ZD(7) amended by No. 75/1998 s. 5(b).

S. 221ZE inserted by No. 39/1996 s. 5.

(1) The Commission may renew the licence or registration of a person even though the person did not apply for the renewal within the time required by section 221ZB(1). (2) However, the Commission may only do this if— (a) the person pays the late renewal fee required by the regulations; and (b) in a case where the licence or registration has expired, it is satisfied that the person did not carry out any plumbing work or specialised plumbing work after the expiry of the person's licence or registration. 221ZF Information to be given to unsuccessful applicants

S. 221ZE(1) amended by No. 75/1998 s. 5(b).

S. 221ZE(2) amended by No. 75/1998 s. 5(b).

S. 221ZF inserted by No. 39/1996 s. 5.

(1) If the Commission refuses to license or register a person or to renew a person's licence or registration, the Commission must notify the person in writing of the refusal as soon as possible after the refusal. (2) The notice of refusal must set out the Commission's reasons for refusing the application and must contain a copy of section 221ZZZP.

(1) The Registrar may ask a person who holds a licence or registration document for the return of that licence or registration document— (a) for the purpose of altering the details on the licence or registration document; or (b) for any purpose permitted by this Act.

S. 221ZFA(2) amended by No. 36/2008 s. 18(6)(b).

(2) A person who holds a licence or registration document must return it to the Registrar as soon as is practicable after being asked to do so by the Registrar under subsection (1). P 10 penalty units.

S. 221ZFB inserted by No. 31/2007 s. 11.

221ZFB Licensed plumber to produce licence for inspection A licensed plumber must produce his or her licence for inspection if asked to do so by— (a) any person— (i) with whom the licensed plumber has entered into a contract to carry out plumbing work or specialised plumbing work; or (ii) to whom the licensed plumber has made a statement indicating that the licensed plumber is willing or prepared to carry out plumbing work or specialised plumbing work or to enter

229

s. 221ZFC

into a contract to carry out that work; or (b) the owner or occupier of any land, building, vehicle, caravan or vessel— (i) on or in which the licensed plumber is carrying out plumbing work or specialised plumbing work; or (ii) in respect of which the licensed plumber has entered into a contract to carry out plumbing work or specialised plumbing work; or (iii) in respect of which the licensed plumber has made a statement indicating that he or she is willing or prepared to carry out plumbing work or specialised plumbing work or to enter into a contract to carry out that work; or (c) any person authorised in writing for the purpose of this section by— (i) the Commission; or (ii) any other body that is responsible for the control of the class or type of plumbing work or specialised plumbing work that the licensed plumber is carrying out. P 10 penalty units.
S. 221ZFC (Heading) amended by No. 36/2008 s. 18(2). S. 221ZFC inserted by No. 31/2007 s. 11, amended by No. 36/2008 s. 18(2).

221ZFC Registered plumber to produce registration document for inspection A registered plumber must produce his or her registration document for inspection if asked to do so by— (a) the owner or occupier of any land, building, vehicle, caravan or vessel on or in which the registered plumber is carrying out plumbing

230

s. 221ZH

work or specialised plumbing work; or (b) any person authorised in writing for the purpose of this section by— (i) the Commission; or (ii) any other body that is responsible for the control of the class or type of plumbing work or specialised plumbing work that the registered plumber is carrying out. P 10 penalty units.

221ZG This Division does not apply to complex gasfitting work Nothing in this Division applies to gasfitting work on a complex gas installation (as defined in the Gas Safety Act 1997). References to "plumbing work" in this Division are to be read as references to all plumbing work other than that work. 221ZH Compliance certificate must be given for most plumbing work (1) This section only applies to the following plumbing work— (a) any plumbing work that has a total value of $500 or more (or any higher amount fixed by the regulations); and

(b) the installation, relocation or replacement of any gas-using appliance; and (ba) the conversion of a gas-using appliance for use with a different gaseous fuel; and

231

s. 221ZH

(bb) the installation, modification or relocation of consumer gas piping (other than work that is carried out on consumer gas piping by, or on behalf of, a gas company and that is incidental to the modification of the gas company's assets under the provisions of an accepted safety case under the Gas Safety Act 1997); and (c) the construction, installation or alteration of any below ground sanitary drain or associated gullies; and (d) the construction, installation, alteration, relocation or replacement of a cooling tower or of any other part of a cooling tower system (including the installation or replacement of any associated device or equipment). (2) Within 5 days of the completion of any plumbing work to which this section applies that he or she has carried out or supervised, a licensed plumber must— (a) give the person for whom the work was carried out a signed compliance certificate in respect of the work; and (b) notify the Commission, in the manner specified by the Commission, that the compliance certificate has been given. P 10 penalty units for a first offence; 15 penalty units for a second offence; 25 penalty units for a third or subsequent offence.

(2A) A person for whom plumbing work to which this section applies has been carried out may, by notice served on the licensed plumber, request the licensed plumber to give the person a signed compliance certificate for the work carried out or

S. 221ZH(2A) inserted by No. 36/2008 s. 21(1).

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s. 221ZH

supervised by the plumber— (a) if the plumber has not completed the work that the plumber was engaged to carry out; and (b) the person believes on reasonable grounds that the plumber will not complete the plumbing work.
S. 221ZH(2B) inserted by No. 36/2008 s. 21(1).

(2B) Within 5 days of service of a notice under subsection (2A), a licensed plumber must— (a) give the person for whom the work was carried out a signed compliance certificate in respect of the work; and (b) notify the Commission, in the manner specified by the Commission, that the compliance certificate has been given. P 10 penalty units for a first offence; 15 penalty units for a second offence; 25 penalty units for a third or subsequent offence.

S. 221ZH(3) amended by No. 75/1998 s. 5(b).

(3) A document is not a compliance certificate unless the certificate form used is a form that has been supplied by the Commission or a person authorised by the Commission. (4) For the purposes of this section plumbing work is completed by a licensed plumber when whichever of the following first occurs— (a) the plumber completes the whole of the plumbing work that he or she was engaged to carry out in accordance with the relevant plumbing laws; (b) the whole of the plumbing work that the plumber was engaged to carry out is capable of being used in accordance with the relevant plumbing laws.

(5) If a plumber carries out or supervises any plumbing work to which subsection (1)(b), (ba) or (bb) applies, for the purposes of subsection (2) or (2B) he or she must give a separate compliance certificate in respect of the work for each separately metered premises on or at which the work is carried out, even if all of the work was carried out or supervised by the plumber for the same person under a contract. (6) If a licensed plumber gives a person a signed compliance certificate, but fails to do so within 5 days after the completion of the relevant work, or fails to comply with subsection (2)(b), the failure to comply with subsection (2) does not affect the validity of the certificate. (6A) If a licensed plumber gives a person a signed compliance certificate, but fails to do so within 5 days after the service of a notice under subsection (2A), or fails to comply with subsection (2B)(b), the failure to comply with subsection (2B) does not affect the validity of the certificate. (7) Subsection (6) applies regardless of whether the compliance certificate was given before, on or after the day subsection (6) took effect. 221ZI Details that must appear on a compliance certificate (1) A licensed plumber must not sign a compliance certificate in relation to any plumbing work unless the certificate— (a) describes the work; and (b) states— (i) that he or she carried out the work, or that the work was carried out under his or her supervision; or (ii) if he or she completed work that had

been started by another licensed plumber and in respect of which a compliance certificate has not been given to the person for whom that work was carried out, that he or she— (A) has inspected or tested the work that was carried out before he or she carried out any work; and (B) carried out any work that was required to complete the plumbing work or that that completion work was carried out under his or her supervision; and (c) states that the work complies with any particular requirements specified in the certificate; and (d) states that the work complies with the plumbing laws; and (e) contains any other details in relation to the work required by the certificate form. P
S. 221ZI(2) inserted by No. 75/1998 s. 11(2).

10 penalty units.

(2) A licensed plumber must not state under subsection (1)(b) that work was carried out under his or her supervision unless the person who carried out the work was authorised to carry out the work under this Part. P 10 penalty units. 221ZJ Details on certificates must be accurate A licensed plumber must not sign a compliance certificate in relation to any plumbing work if the plumber knows, or ought reasonably to know, that the certificate contains any misstatement of fact. P 60 penalty units. 221ZK Only licensed plumbers may sign certificates

S. 221ZJ inserted by No. 39/1996 s. 5.

S. 221ZK inserted by No. 39/1996 s. 5.

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s. 221ZKA

A person must not— (a) sign a compliance certificate form issued by, or on behalf of, the Commission unless he or she is a licensed plumber; or (b) sign a document that has not been issued by, or on behalf of, the Commission and that purports to be a compliance certificate. P 60 penalty units.
S. 221ZKA inserted by No. 96/2004 s. 16. S. 221ZK(a) amended by No. 75/1998 s. 5(b). S. 221ZK(b) amended by No. 75/1998 s. 5(b).

221ZKA Issue of certificates by the Commission (1) The Commission may authorise a person to issue and sign a compliance certificate on its behalf if plumbing work in respect of which a compliance certificate must be issued under section 221ZH is completed and the licensed plumber who carried out the work— (a) did not issue a certificate in respect of the work, and is dead or cannot be located after reasonable enquiries have been made; or (b) is under a physical or legal disability that prevents him or her from issuing a certificate in respect of the work. (2) A person who requests a compliance certificate under this section is liable to pay— (a) any fee or fees specified by the regulations for the purposes of this section; and (b) any costs incurred by or on behalf of the Commission to enable the certificate to be issued and signed. (3) Subsection (2) applies even if a certificate is not ultimately issued and signed under this section. (4) For the purposes of this section, section 221ZI(1) applies as if—

236

s. 221ZL

(a) a reference to a licensed plumber was a reference to the person authorised by the Commission to sign the certificate; and (b) there were substituted for paragraph (b) the following paragraph— "(b) states that he or she has inspected or tested the work as far as is practicable and that he or she is authorised by the Commission to issue compliance certificates under section 221ZKA; and". (5) Section 221ZK(a) does not apply to the signing of a compliance certificate by a person who has been authorised to sign the certificate under this section. (6) A certificate that is issued under this section is to be treated as if it had been issued in accordance with section 221ZH.
S. 221ZL inserted by No. 39/1996 s. 5.

221ZL Meaning of the total value of plumbing work For the purposes of this Division, the total value of plumbing work is the sum of— (a) the cost of any materials used in the work (even if the materials were not supplied by the person carrying out the work); and (b) if the work involves the installation of any thing, the cost of the thing (even if the thing was not supplied by the person carrying out the work); and (c) the cost of the labour involved in the work.

S. 221ZLA inserted by No. 75/1998 s. 12.

221ZLA Building practitioner must transfer compliance certificate to owner (1) This section applies if— (a) a licensed plumber carries out any plumbing work to which section 221ZH applies for a

237

s. 221ZLB

building practitioner in or on any premises that the building practitioner does not own; and (b) the plumber gives the building practitioner (or an agent of the building practitioner) the compliance certificate in respect of the work. (2) The building practitioner must give the compliance certificate to the owner of the premises (or to the owner's agent) within 5 days after the day the building practitioner (or the building practitioner's agent) is given the compliance certificate. P 3 penalty units.
S. 221ZLB inserted by No. 96/2004 s. 17. S. 221ZLA(2) amended by No. 96/2004 s. 18, substituted by No. 31/2007 s. 12.

221ZLB Other people must also transfer compliance certificate to owner (1) This section applies if— (a) a licensed plumber carries out any plumbing work to which section 221ZH applies for a person other than a building practitioner in or on any premises that the person does not own; and (b) the plumber gives the person (or an agent of the person) the compliance certificate in respect of the work. (2) The person must give the compliance certificate to the owner of the premises (or to the owner's agent) within 5 days after the day the person (or the person's agent) is given the compliance certificate. P 3 penalty units. 221ZM Copies of certificates must be kept for 10 years A person must keep for at least 10 years a copy of every compliance certificate signed by him or her.

(1) The Commission may sell compliance certificate forms to licensed plumbers. (2) The Commission may authorise a person to sell compliance certificate forms to licensed plumbers. (3) In authorising a person, the Commission may impose any conditions on its authorisation that it thinks appropriate, and may change any such condition at any time. (4) A person authorised by the Commission to sell compliance certificate forms— (a) must not sell or give a compliance certificate form to a person who is not a licensed plumber; and (b) must not sell a compliance certificate form to a licensed plumber at a price greater than $20 (or any other amount specified by the regulations); and

S. 221ZN(4) amended by No. 75/1998 s. 5(b).

S. 221ZN(4)(c) amended by No. 75/1998 s. 5(b).

(c) must comply with any condition imposed by the Commission in granting its authorisation. P 20 penalty units.

S. 221ZN(5) amended by No. 75/1998 s. 5(b).

(5) The Commission must not sell a compliance certificate form to a licensed plumber at a price greater than $20 (or any other amount specified by the regulations). (6) A licensed plumber may authorise a person in writing to buy compliance certificate forms on the

239

s. 221ZP

s. 221ZO

plumber's behalf. (7) A licensed plumber must ensure that only one person has such an authority at any one time. P 5 penalty units. (8) A reference to a licensed plumber in subsections (1) to (5) includes a reference to any person duly authorised by a licensed plumber under subsection (6). 221ZO Further obligation for compliance certificates for sanitary drains (1) This section applies if a licensed plumber constructs, installs or alters any sanitary drain. (2) If required by a water authority to give the authority a plan of the sanitary drain as it appears after the work is completed, the licensed plumber must— (a) give the plan to the authority before the compliance certificate is signed; and (b) indicate on the compliance certificate that the plan has been given to the authority. P 20 penalty units.
S. 221ZO(2)(a) amended by No. 96/2004 s. 19(1)(a). S. 221ZO inserted by No. 39/1996 s. 5, amended by No. 96/2004 s. 19(1)(b).

Division 5—Provisions applying to particular plumbing work 221ZP Sanitary drainage and other work must be made available for inspection before being covered (1) This section applies if a licensed plumber— (a) constructs, installs or alters any below ground sanitary drain or associated gullies, or supervises any such work; or
S. 221ZP inserted by No. 39/1996 s. 5.

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s. 221ZPA

(b) carries out any other plumbing work that the regulations state is work to which this section applies. (2) The plumber must not cover any pipes or pipework involved in the work unless—
S. 221ZP(2)(a) amended by No. 75/1998 s. 5(b).

(a) he or she has advised the Commission in the manner specified by the Commission of the time at which the work will be ready for inspection; and (b) either— (i) a person authorised by the Commission has inspected the work and authorised the plumber to cover the work; or (ii) no person authorised by the Commission arrives to inspect the work and at least half an hour has elapsed since the time referred to in paragraph (a). P 10 penalty units. (3) Unless he or she has a reasonable excuse for not doing so, the plumber— (a) must ensure that the work is ready to be inspected at the time given to the Commission under subsection (2)(a); and (b) must be present at that time at the place where the work was carried out. P 10 penalty units.

221ZPA Information to be provided before work starts (1) Before a licensed or registered plumber starts any plumbing work at a premises, he or she must give the person who commissioned the work a document that sets out the plumber's name,

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s. 221ZQ

licence or registration number, and business address. P 10 penalty units. (2) If the plumbing work is work for which section 221ZH requires the issue of a compliance certificate, the plumber must at the same time also give the person a document that contains a brief description of the required insurance that applies to the work. P 10 penalty units. (3) The description required by subsection (2) must be in a form approved by the Commission.

Division 6—Insurance orders 221ZQ Order requiring insurance (1) The Minister may, by order published in the Government Gazette— (a) require licensed plumbers to be covered by insurance; and (b) specify the kinds and amount of insurance by which licensed plumbers are required to be covered. (2) An order— (a) must state the date on which it is to take effect, which must be a date that is not earlier than 21 days after the date it is published in the Government Gazette; (b) may impose different requirements for different classes of licensed plumbers. (3) The Minister may, in a particular case, vary any excess specified in an order if the Minister is
S. 221ZQ inserted by No. 39/1996 s. 5.

(4) The Minister may, by order published in the Government Gazette, amend or revoke an order made under subsection (1). (5) For the purposes of this Part, a person is covered by the required insurance if— (a) the person holds the required insurance; or (b) the work carried out by or on behalf of the person is covered by the required insurance; or (c) the person is not a party to the required insurance but is specified or referred to in the insurance, whether by name or otherwise, as a person to whom the insurance cover extends.

S. 221ZQ(5A) inserted by No. 34/1997 s. 21.

(5A) The order of the Minister under this section published in the Government Gazette on 28 February 1997 is revoked and is deemed never to have been made. (5B) The order of the Minister under this section published in the Government Gazette on 6 May 1997 is deemed to have been made under this section on 28 February 1997 and to have taken effect on 24 March 1997, despite anything to the contrary in this section or in the order. (5C) Any reference in any document (other than this Act) to the order of the Minister under this section published in the Government Gazette on 28 February 1997 is deemed to be a reference to the order referred to in subsection (5B), unless a contrary intention expressly appears. (6) In this section insurance includes— (a) professional indemnity insurance; (b) a performance bond;

S. 221ZQ(5B) inserted by No. 34/1997 s. 21.

S. 221ZQ(5C) inserted by No. 34/1997 s. 21.

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s. 221ZR

(c) a guarantee; (d) an indemnity; (e) public liability insurance; (f) insurance relating to a particular project; (g) insurance taken out by any body or person that relates to the work of a licensed plumber; (h) any agreement or instrument in the nature of an item set out in paragraphs (a) to (g).

221ZR Offence to work as plumber without required insurance A licensed plumber must not carry out any plumbing work unless he or she is covered by the required insurance. P 100 penalty units. 221ZS Offence to claim to be insured when uninsured A person who carries out, or offers to carry out, any plumbing work and who is not covered by the required insurance must not hold himself or herself out as being covered by that insurance. P 100 penalty units. 221ZT Further provisions concerning required insurance (1) Without limiting section 221ZQ, if an order under that section requires a licensed plumber to be covered by insurance relating to the carrying out of plumbing work, the insurance required by the order may, subject to any exemptions or exclusions set out in the order, relate to losses

(c) conduct by the plumber in connection with the contract for that work that contravenes section 52, 53, 55A or 74 of the Trade Practices Act 1974 of the Commonwealth or section 9, 11 or 12 of the Fair Trading Act 1999.

S. 221ZT(2) inserted by No. 17/1999 s. 22(8).

(2) A reference— (a) in any order made under section 221ZQ; or (b) in any instrument or agreement which is required insurance (within the meaning of section 221B(1))— to "section 11, 12 or 17 of the Fair Trading Act 1985", is, to the extent that it relates to any period on or after the commencement of section 22 of the Fair Trading (Inspectors Powers and Other Amendments) Act 1999, deemed to include a reference to "section 9, 11 or 12 of the Fair Trading Act 1999".

S. 221ZU inserted by No. 39/1996 s. 5.

221ZU Suspension of licence if insurance ceases

S. 221ZU(1) amended by No. 75/1998 s. 5(b).

(1) The Commission must suspend the licence of a licensed plumber if it becomes aware that he or she has ceased to be covered by the required insurance.

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s. 221ZV

(2) If the Commission suspends a person's licence under subsection (1), it must give him or her written notice of the suspension. (3) A suspension imposed under this section lasts until the person suspended gives the Commission written proof that he or she is covered by the required insurance for the remaining period of the licence. When that proof is given, the Commission must revoke the suspension.
S. 221ZU(3) amended by Nos 75/1998 s. 5(b), 36/2008 s. 23.

S. 221ZU(2) amended by No. 75/1998 s. 5(b).

221ZV Suspension of licence where failure to comply with insurer's direction (1) An insurer may apply to the Commission for the suspension of the licence of a licensed plumber on the ground of a failure by the plumber to comply with a reasonable direction of the insurer in respect of the completion or rectification of defective plumbing work or any payment to be made to the insurer in respect of the completion or rectification of defective plumbing work in accordance with the required insurance. (2) An application must— (a) be in writing; and (b) set out the terms of the direction to be complied with. (3) The Commission must notify a plumber in respect of whom an application is made without delay of the application and advise the plumber—

(a) that his or her licence may be suspended at the end of 28 days after the date of the notice unless the plumber complies with the direction; and
S. 221ZV(3)(b) amended by No. 75/1998 s. 5(b). S. 221ZV(4) amended by No. 75/1998 s. 5(b).

(b) that he or she has a right to be heard by the Commission in respect of the application. (4) If a plumber has not complied with the direction within 28 days after the date of the notice, the Commission, after giving the plumber an opportunity to be heard, may suspend the plumber's licence. (5) Clauses 12, 15, 16, 17 and 18(1) of Schedule 3 apply to a proceeding under subsection (4) as if a reference in those clauses to the Building Appeals Board was a reference to the Plumbing Industry Commission. (6) If the Commission suspends a plumber's licence under this section, the suspension lasts until the Commission is satisfied that the plumber has complied with the direction. On being so satisfied, the Commission must revoke the suspension. Division 7—Rectification of defective plumbing work

S. 221ZV(5) amended by Nos 75/1998 s. 5(b), 28/2000 s. 20(b).

S. 221ZV(6) amended by No. 75/1998 s. 5(b).

S. 221ZW inserted by No. 39/1996 s. 5.

221ZW Inspector or auditor may require plumber to rectify faulty work (1) This section applies if a plumbing inspector or compliance auditor is of the opinion that particular plumbing work is in breach of any plumbing laws that apply to the work. (2) The inspector or auditor may give the person who carried out the work, or who supervised the carrying out of the work, a written rectification notice requiring the person to rectify the work to make it comply with the plumbing law that the

247

s. 221ZW

work does not comply with within the time specified by the inspector or auditor. (3) If a certificate of compliance was given with respect to the work, the inspector or auditor may also require the licensed plumber who signed the certificate to produce a new certificate of compliance in respect of the rectified work and to give the inspector or auditor a copy of that new certificate within the time specified by the inspector or auditor.

(4) In requiring a copy of a new compliance certificate under subsection (3), the inspector or auditor must allow the licensed plumber a period of at least 10 days after the date of the notice to comply with the requirement. (5) A person— (a) must comply with any requirement made by an inspector or auditor in a rectification notice; and (b) must not ask for, or receive, from the person for whom the work was originally carried out (or any agent of that person) any money in respect of any cost arising from anything the person does in complying with a rectification notice. P 50 penalty units. (6) The inspector or auditor must make it clear in a rectification notice in what way the work that needs rectification is defective. (7) If a person applies to the Victorian Civil and Administrative Tribunal under section 221ZX to have a rectification notice cancelled, he or she need not comply with the notice until he or she
S. 221ZW(7) amended by No. 28/2000 s. 20(c).

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s. 221ZX

abandons the application or receives written notice that the Tribunal has affirmed the rectification notice or dismissed the application. (8) For the purposes of subsection (7), if the time specified to comply with a rectification notice is expressed as a date, the time within which the notice must be complied with is the number of days between that date and the date the notice was given to the person.

(9) If an inspector or auditor gives a rectification notice to a person before the person produces any compliance certificate that the person is required to produce in respect of particular plumbing work, the person must still produce the compliance certificate once the rectification work has been completed. (10) The inspector or auditor must give a copy of the rectification notice to the person on whose behalf the plumbing work was carried out.
S. 221ZW(11) inserted by No. 99/1997 s. 121(7).

(11) If the rectification notice relates to gasfitting work, the inspector or auditor must give a copy of the rectification notice to the relevant gas distribution company. 221ZX Right to apply to VCAT to have a rectification notice cancelled (1) A person who has been given a rectification notice may apply to the Victorian Civil and Administrative Tribunal to have the decision to issue the notice reviewed. (2) Such an application must be made within 5 business days of the date the person receives the notice.

221ZY Plumbing notice to owner/occupier to rectify defective plumbing work (1) This section applies if a plumbing inspector is of the opinion that any plumbing work that has been carried out on any land or in any building— (a) contravenes any plumbing laws; or (b) would contravene any plumbing laws if it were to be used; or (c) may be a danger to the life, safety or health of any person or may pose a risk of damage to any property. (2) The plumbing inspector may give the owner or occupier of the land or building a written notice that requires the owner or occupier to show cause within a specified period why he or she should not ensure that the plumbing work is rectified. (3) The notice must be in the form specified by the Commission. 221ZZ Owner/occupier may dispute a plumbing notice An owner or occupier who has been given a plumbing notice may make representations about any matter set out in the notice to the inspector who signed it in the manner set out in the notice. 221ZZA Inspector may cancel plumbing notice The plumbing inspector who gave a plumbing notice may cancel it at any time. 221ZZB Plumbing order to rectify defective plumbing work (1) A plumbing inspector may issue a written order requiring that the owner or occupier of any land or building— (a) rectify any plumbing work that has been carried out on the land or in the building so

that it complies with the plumbing laws; or (b) modify any plumbing work that has been carried out on the land or in the building. (2) A plumbing inspector may only issue such an order after— (a) he or she has given the owner or occupier a plumbing notice in respect of the plumbing work; and

(b) he or she has considered any representations made by the owner or occupier in response to the plumbing notice within the period permitted by the plumbing notice; and (c) the time permitted by the plumbing notice for the making of representations has passed. (3) The order— (a) must specify the time or times within which it must be complied with (which must be a period of at least 15 business days after it is given to the owner or occupier); and (b) must contain a copy of sections 221ZZC, 221ZZE and 221ZZJ; and
S. 221ZZB (3) (c) amended by No. 75/1998 s. 5(b). S. 221ZZB(4) inserted by No. 99/1997 s. 121(8). S. 221ZZC inserted by No. 39/1996 s. 5.

(c) must contain any other details required by the Commission. (4) If the order relates to gasfitting work, the plumbing inspector must give a copy of the order to the relevant gas distribution company. 221ZZC Owner/occupier must comply with plumbing order (1) An owner or occupier of any land or building must comply with any requirement set out in a

251

s. 221ZZD

plumbing order that has been given to him or her within the time set out in the order. P In the case of a natural person, 60 penalty units; In the case of a body corporate, 120 penalty units. (2) Subsection (1) does not apply if the owner or occupier has a reasonable excuse for failing to comply with the order.

221ZZD Inspector may cancel plumbing order The plumbing inspector who gave a plumbing order may cancel it at any time. 221ZZE Right to apply to the VCAT to have a plumbing order cancelled (1) A person who has been given a plumbing order may apply to the Victorian Civil and Administrative Tribunal to have the decision to issue the order reviewed. (2) Such an application must be made within 15 business days of the date the person receives the order. (3) If an owner or occupier applies to the Tribunal within the time allowed, he or she need not comply with section 221ZZC until the expiry of— (a) 15 business days after he or she receives written notice that the Commission has affirmed the plumbing order; or (b) 5 business days after he or she abandons the

application or he or she receives written notice that the Commission has dismissed the application— (whichever happens first). (4) In considering an application, the Tribunal may consider matters not raised before the plumbing order was made.

S. 221ZZF inserted by No. 39/1996 s. 5.

221ZZF Emergency plumbing order to rectify dangerous plumbing work (1) This section applies if a plumbing inspector is of the opinion that any plumbing work that has been carried out on any land or in any building— (a) contravenes any plumbing laws or would contravene any plumbing laws if it were to be used; and (b) is an immediate danger to the life, safety or health of any person or poses an immediate risk of significant damage to any property. (2) The plumbing inspector may issue a written order requiring that the owner or occupier of the land or building, within a specified time or times— (a) rectify the plumbing work so that the danger or risk is removed; or (b) modify the plumbing work so that the danger or risk is removed; or (c) ensure that everyone on the land or in the building is evacuated from the land or building; or

253

s. 221ZZG

(d) ensure that specified people or classes of people on the land or in the building are evacuated from the land or building. (3) The plumbing inspector may also, in an emergency plumbing order, prohibit the occupation or use of the land or building for a specified period of up to 48 hours. (4) The order must contain a copy of sections 221ZZG and 221ZZJ. (5) The Commission has no power to cancel an order made under this section. (6) If the order relates to gasfitting work, the plumbing inspector must give a copy of the order to the relevant gas distribution company. 221ZZG Offence to not comply with emergency plumbing order (1) An owner or occupier of any land or building must comply with any emergency plumbing order that has been given to him or her. P In the case of a natural person, 120 penalty units; In the case of a body corporate, 360 penalty units. (2) A person must not occupy or use any land or building in contravention of an emergency plumbing order. P In the case of a natural person, 120 penalty units; In the case of a corporation, 360 penalty units. (3) This section does not apply if the owner, occupier or person has a reasonable excuse for failing to
S. 221ZZF(5) amended by No. 75/1998 s. 5(b). S. 221ZZF(6) inserted by No. 99/1997 s. 121(9). S. 221ZZG inserted by No. 39/1996 s. 5.

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s. 221ZZI

comply with the order.
S. 221ZZH inserted by No. 39/1996 s. 5.

221ZZH Inspector may cancel emergency plumbing order The plumbing inspector who gave an emergency plumbing order to an owner or occupier may cancel it by written notice given to the owner or occupier if the order was made in error or if the circumstances giving rise to the making of the order have changed.

S. 221ZZI inserted by No. 39/1996 s. 5.

221ZZI Plumbing notices and orders to be last resort (1) A plumbing inspector must not give an owner or occupier of any land or building a plumbing notice or a plumbing order in relation to any plumbing work unless either— (a) the inspector served a rectification notice in relation to the work on the plumber responsible for the work, and it is clear that that notice will not be complied with; or (b) the inspector is satisfied that it is either not possible or not appropriate to serve a rectification notice in relation to the work on the plumber responsible for the work. (2) A plumbing inspector must not give an owner or occupier of any land or building an emergency plumbing order in relation to any plumbing work that makes a requirement under section 221ZZF(2)(a) unless the inspector is satisfied that the emergency plumbing order is likely to be complied with more quickly than a rectification notice in relation to the work would be complied with.

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s. 221ZZK

221ZZJ Owner/occupier must report the completion of required work (1) An owner or occupier who is required by a plumbing order or emergency plumbing order to ensure that plumbing work is carried out must advise the plumbing inspector who issued the order that the work has been carried out as soon as is practicable after the work is finished. P 10 penalty units. (2) On receiving the advice, the plumbing inspector must inspect the work. 221ZZK Work may be carried out by plumbing inspector/Commission (1) If an owner or occupier fails to comply with a plumbing order or emergency plumbing order, the Commission or the plumbing inspector who issued the order may cause the work required by the order to be carried out. (2) The Commission may recover any costs incurred in carrying out the work from the owner or occupier (as the case may be) in a court of competent jurisdiction as a debt due to the Commission. 221ZZL Police assistance (1) A plumbing inspector may ask for the help of a member of the police force, and a member of the police force may help— (a) in evacuating land or a building in accordance with an emergency plumbing order; or (b) in removing people from land or a building on or in which the work is being carried out in accordance with a plumbing order or an

emergency plumbing order by the inspector or a person asked to carry out the work by the inspector or the Commission. (2) A member of the police force may use reasonable force in carrying out a function under subsection (1).

221ZZM Meaning of plumbing regulations In this Division, plumbing regulations means— (a) any regulations made under section 221ZZZV(1)(a) or (g)(i); or

S. 221ZZM(b) amended by No. 99/1997 s. 121(6).

(b) any regulation (other than any regulation made under the Gas Safety Act 1997), local law or by-law that applies, or that applied at a material time, to plumbing work. 221ZZN Commission may resolve disputes concerning the interpretation of plumbing regulations (1) This section applies if there is a dispute about the application or effect of any provision of the plumbing regulations, or whether any provision of the plumbing regulations is, or has been, complied with, and the dispute is between all or any of the following— (a) the owner or occupier of a premises on which plumbing work is being, has been or is about to be, carried out; (b) the licensed or registered plumber who is

S. 221ZZN inserted by No. 39/1996 s. 5.

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s. 221ZZN

carrying out, carried out, or is about to carry out, that work; (c) any person who acts on behalf of the owner or occupier of the premises; (d) a plumbing inspector or compliance auditor. (2) One or more of the parties to the dispute may apply to the Commission for a declaration as to the application or effect of the provision of the plumbing regulations or whether the provision of the plumbing regulations is, or has been, complied with. (3) The application may be made in any manner approved by the Commission. (4) After conducting a hearing on the application, the Commission must declare its opinion on the matter in dispute. (5) Each party to the dispute is bound by the declaration of the Commission and must give effect to the declaration once the declaration takes effect. (6) Each person who was given an opportunity to be heard by the Commission is a party to the dispute for the purposes of subsection (5). (7) An application to the Victorian Civil and Administrative Tribunal for the review of a declaration of the Commission must be made by the end of the 5th business day after each party to the dispute has received a copy of the declaration. (8) A declaration takes effect— (a) at the start of the 6th business day after each party to the dispute has received a copy of it; or (b) if an application to review it has been
S. 221ZZN(2) amended by No. 75/1998 s. 5(b).

lodged, on the application being abandoned or on the Victorian Civil and Administrative Tribunal dismissing the application or affirming the declaration.
S. 221ZZN(9) amended by Nos 75/1998 s. 5(b), 28/2000 s. 20(c).

(9) If a person applies to the Victorian Civil and Administrative Tribunal for the review of a declaration, the Commission must give the person its written reasons for the declaration as soon as possible after the application is lodged.

S. 221ZZO inserted by No. 39/1996 s. 5.

221ZZO Modification of plumbing regulations

S. 221ZZO(1) amended by No. 75/1998 s. 5(b).

(1) The Commission may declare that a provision of the plumbing regulations does not apply, or applies with specified variations, to specified plumbing work. (2) A declaration under this section overrides the plumbing regulations and must be given effect to with respect to the specified plumbing work as if those regulations had been amended to accord with the declaration. (3) An application for a declaration may be made by — (a) the owner or occupier of a building or land; (b) a licensed or registered plumber; (c) a plumbing inspector or compliance auditor;

(d) a Department Head within the meaning of the Public Administration Act 2004;

259

s. 221ZZP

(e) a public authority. (4) The person applying for the declaration must— (a) identify the plumbing work for which the application is being made; and (b) specify in what way the person would like the plumbing regulations modified with respect to that work. (5) An application for a declaration must be accompanied by the fee set out in the regulations. (6) For the purposes of this Part, any plumbing work that is the subject of a declaration complies with the plumbing regulations if it complies with those regulations as modified by the declaration. 221ZZP Matters Commission must consider before making a modification declaration (1) The Commission may only declare that a provision of the plumbing regulations does not apply to specified plumbing work if it is satisfied that the provision is inappropriate in the particular circumstances. (2) The Commission may only declare that a provision of the plumbing regulations applies with the variations specified by the Commission to specified plumbing work if it is satisfied that it is reasonable to do so and is not detrimental to the public interest. (3) In making a declaration under section 221ZZO, the Commission may impose any conditions that it thinks appropriate in relation to how the declaration is to be given effect to. 221ZZQ Procedure applying to hearings under this Part
S. 221ZZP inserted by No. 39/1996 s. 5. S. 221ZZP(1) amended by No. 75/1998 s. 5(b).

S. 221ZZP(2) amended by No. 75/1998 s. 5(b).

S. 221ZZP(3) amended by No. 75/1998 s. 5(b).

S. 221ZZQ inserted by No. 39/1996 s. 5.

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s. 221ZZR

(1) Subject to anything to the contrary in this Part, clauses 12, 15, 16, 17, 18(1) and 19 of Schedule 3 apply to the hearing of a dispute under section 221ZZN or of an application under section 221ZZO as if a reference in those clauses to—
S. 221ZZQ (1) (a) amended by No. 75/1998 s. 5(c).

(a) the Building Appeals Board was a reference to the Plumbing Industry Commission; and (b) a determination was a reference to a declaration. (2) For the purposes of this Division, section 221ZZZO applies as if a reference in that section to a disciplinary hearing was a reference to the hearing of a dispute under section 221ZZN or of an application under section 221ZZO.

221ZZR Establishment of the Commission There is established a Plumbing Industry Commission. 221ZZS The Commission is a body corporate (1) The Commission— (a) is a body corporate with perpetual succession; and (b) has an official seal; and (c) may sue and be sued in its corporate name; and

261

s. 221ZZT

(d) may do and suffer all acts and things that bodies corporate may by law do and suffer and that are necessary for, or incidental to, the performance of its functions. (2) The official seal of the Commission must not be used except as authorised by the Commission. (3) All courts and people acting judicially must take judicial notice of the official seal of the Commission. 221ZZT Constitution (1) The Commission is constituted by a Commissioner who is to be appointed by the Governor in Council on the Minister's recommendation. (2) For the purposes of subsection (1), the Minister may only recommend a person who, in the opinion of the Minister, has substantial relevant knowledge and experience. (3) The Commissioner must not engage in paid employment outside the duties of his or her office without the Minister's permission. (4) If the Commissioner was immediately before his or her appointment a member of a statutory superannuation scheme within the meaning of the Superannuation (Public Sector) Act 1992, he or she continues while so appointed, subject to the Act under which the statutory superannuation scheme is created, to be a member of that scheme. (5) Clauses 1 to 6 and 9 of Schedule 3 apply to the Commissioner in the same way as they apply to a chairperson or member of a Board. 221ZZU Accountability (1) The Commission is subject to the direction and control of the Minister. Those directions may be general or specific.
S. 221ZZU substituted by No. 75/1998 s. 3. S. 221ZZT substituted by No. 75/1998 s. 3.

S. 221ZZT(2) amended by No. 96/2004 s. 20.

262

s. 221ZZV

(2) In giving a direction under subsection (1), the Minister may have regard to any advice of the Plumbing Industry Advisory Council. (3) The Commission must give the Minister any information and assistance that the Minister requires and that the Commission is able to give.

221ZZV Functions of the Plumbing Industry Commission The functions of the Plumbing Industry Commission are— (a) to administer the plumber licensing and registration system created by this Part; (b) to promote the maintenance of adequate levels of competence among plumbers; (c) to monitor and enforce compliance with this Part and the regulations made under this Part; (d) to participate on behalf of Victoria in the development of national plumbing standards; (e) to monitor developments relevant to the regulation of plumbing standards in Victoria; (f) to provide information and training to assist persons and bodies in carrying out functions under this Part or the regulations made under this Part; (g) to provide an information service (including to consumers) with respect to plumbing; (h) to conduct or promote research into matters relating to the regulation of the plumbing industry in Victoria and to report on the outcomes of this research in its report of operations under the Financial

263

s. 221ZZVA

Management Act 1994; (i) to promote the resolution of consumer complaints about work carried out by plumbers; (j) to advise the Minister on the carrying out of the Commission's functions and powers under this Act and on any other matter referred to it by the Minister; (k) generally to carry out any other function or duty conferred on it by or under this Act or any other Act. 221ZZVA Gas Safety Minister may direct the Commission (1) The Minister administering the Gas Safety Act 1997 may give the Commission written directions concerning the exercise of the Commission's functions as it affects gas safety and persons carrying out gasfitting work, other than directions affecting one person only. (2) The Commission must comply with those directions. 221ZZW Powers (1) The Commission may do all things that are necessary or convenient to enable it to perform its functions. (2) The Commission may, in writing, delegate to any of the following any of its powers or functions (other than this power of delegation)— (a) any member of the Commission's staff; (b) the Plumbing Industry Commissioner; (c) any member of the Plumbing Industry Advisory Council. (3) The Commission may accept any gifts or donations of money or other property by deed,
S. 221ZZW(3) inserted by No. 54/2007 s. 10. S. 221ZZW substituted by No. 75/1998 s. 3. S. 221ZZVA inserted by No. 54/2007 s. 9.

264

s. 221ZZXA

will or otherwise.
S. 221ZZX substituted by No. 75/1998 s. 3.

221ZZX Staff The Commission may appoint or employ— (a) a Registrar of the Commission; (b) as many people as are required to enable it to carry out its functions.

221ZZXA Establishment of Council There is established a Plumbing Industry Advisory Council. 221ZZXB Constitution (1) The Council consists of— (a) a Chairperson, who must be a person who, in the opinion of the Minister, has substantial knowledge of, and experience in, the plumbing industry; and (b) the Plumbing Industry Commissioner; and

S. 221ZZXB (1)(c) substituted by No. 68/2001 s. 3(4).

(c) the Commissioner of the Building Commission; and (d) a person nominated by the Minister administering the Water Act 1989; and

(e) a person nominated by the Minister administering the Gas Safety Act 1997; and (f) a person nominated by the Minister

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s. 221ZZXC

administering the Education and Training Reform Act 2006; and (g) a person chosen by the Minister; and (h) a person nominated by a body that, in the opinion of the Minister, represents Victorian employers in relation to all classes of plumbing work; and (i) a person nominated by a body that, in the opinion of the Minister, represents airconditioning contractors in Victoria; and (j) a person nominated by a body that, in the opinion of the Minister, represents fire protection contractors in Victoria; and (k) up to 3 people nominated by any body or bodies that, in the opinion of the Minister, represents the industrial interests of employee plumbers; and (l) a person chosen by the Minister to represent the interests of consumers. (2) The members of the Council are to be appointed by the Minister. (3) If a body referred to in subsection (1)(h), (i), (j) or (k) fails to nominate a person within 30 days of being asked to do so in writing, the Minister may appoint a member of that body chosen by the Minister to be a member of the Council. 221ZZXC Functions (1) The functions of the Council are— (a) to provide advice to the Minister, either at the request of the Minister or on its own initiative, in relation to this Part and the plumbing industry;
S. 221ZZXC inserted by No. 75/1998 s. 3.

266

s. 221ZZY

(b) to provide advice to the Plumbing Industry Commission either at the request of the Commission or on its own initiative, in relation to this Part and the plumbing industry.
S. 221ZZXD inserted by No. 75/1998 s. 3.

221ZZXD Conditions of appointment and procedures Parts 1 and 2 (except for clause 8) of Schedule 3 apply to the membership and procedure of the Council in the same way as they apply to a Board. Division 10—Enforcement

S. 221ZZY inserted by No. 39/1996 s. 5.

221ZZY Enforcement staff

S. 221ZZY(1) amended by No. 75/1998 s. 5(b).

(1) The Commission may appoint or employ for the purposes of this Part— (a) plumbing inspectors; and (b) compliance auditors. (2) The Commission must give every person that it appoints as a plumbing inspector an identity card that displays a photograph of the person and states the person's name and the fact that he or she is a plumbing inspector appointed by the Commission. (3) The Commission must give every person that it appoints as a compliance auditor an identity card that displays a photograph of the person and states the person's name and the fact that he or she is authorised to conduct compliance audits for the Commission. 221ZZZ Functions of compliance auditors (1) The function of a compliance auditor is to examine plumbing work in respect of which a compliance certificate has been issued—

S. 221ZZY(2) amended by No. 75/1998 s. 5(b).

S. 221ZZY(3) amended by No. 75/1998 s. 5(b).

S. 221ZZZ inserted by No. 39/1996 s. 5.

267

s. 221ZZZA

(a) to monitor the accuracy of the certificate; and (b) to ensure that the work has been competently carried out and does not pose any risk of injury or damage to any person or property; and (c) to ensure that the plumbing laws have been complied with. (2) The Commission is to determine in its absolute discretion what plumbing work is to be examined by a compliance auditor. 221ZZZA Powers of compliance auditors
S. 221ZZZ(2) amended by No. 75/1998 s. 5(b). S. 221ZZZA inserted by No. 39/1996 s. 5 , amended by No. 34/1997 s. 22(2). S. 221ZZZA(1) inserted by No. 34/1997 s. 22(1). S. 221ZZZA(1)(a) substituted by No. 31/2007 s. 13(1).

(1) In carrying out his or her functions under this Part, a compliance auditor may— (a) enter any residence or the land on which a residence is situated— (i) between the hours of 8 a.m. and 6 p.m.; or (ii) at any other time with the written consent of the occupier of the residence or land; and (b) enter any other building or land at any reasonable time. (1A) A compliance auditor must, before obtaining a consent under subsection (1)(a)(ii), inform the occupier of the residence or land of the compliance auditor's reason for entering the residence or land.

(2) A compliance auditor must give the occupier (if any) of a building or land not less than 24 hours notice, or such other notice as may be agreed with the occupier, before the compliance auditor enters the building or land under subsection (1)(a)(i) or (1)(b).

(3) A compliance auditor may— (a) require a person who is, or was, a licensed plumber to produce any document that relates to any work that the auditor is examining; and (b) make copies of any document that relates to any work that the auditor is examining; and (c) require a person who is, or was, a licensed plumber to supply any other information or document that relates to any work or compliance certificate that the auditor is examining; and
S. 221ZZZA (3)(d) amended by No. 75/1998 ss 5(b), 15(1).

(d) report to the Commission, or a person authorised by the Commission, the results of any examination he or she conducts; and (e) require a person who is, or was, a licensed plumber to attend any inspection of any work that the auditor is examining that was carried out or supervised by the person. 221ZZZB Plumber must give information to compliance auditor (1) A person must comply with any requirement made by a compliance auditor under section 221ZZZA(3)(a) or (c).

(2) However, a person need not answer any question put to him or her under section 221ZZZA(3)(c) if the answer might incriminate him or her.

(3) A person must comply with any requirement made by a compliance auditor under section 221ZZZA(3)(e). P 10 penalty units. 221ZZZBA Inspector may require plumber to attend inspection (1) A plumbing inspector may require a person who is, or was, a licensed or registered plumber, to attend any inspection of any work that the inspector is examining that was carried out or supervised by the person. (2) The person must comply with the requirement. P 10 penalty units. 221ZZZC Additional powers of plumbing inspectors (1) Part 13 applies to caravans and vessels as if a caravan or vessel was a building and the occupant of the caravan or vessel was its occupier. (2) After entering any land or building under Part 13, a plumbing inspector or compliance auditor may — (a) inspect and test any plumbing work on or in that land or building; (b) if it is reasonable or necessary for the purpose of such an inspection or test— (i) isolate that land or building from any water or gas supply;

S. 221ZZZB(3) inserted by No. 75/1998 s. 15(4).

S. 221ZZZBA inserted by No. 75/1998 s. 16.

S. 221ZZZC inserted by No. 39/1996 s. 5.

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s. 221ZZZD

(ii) connect or reconnect that land or building to a water or gas supply; (iii) dismantle and re-assemble the work.

(3) In this section— caravan includes any form of movable dwelling other than a boat or houseboat; vessel means any boat or houseboat that has a gas appliance or toilet as a fixture.
S. 221ZZZD inserted by No. 39/1996 s. 5.

221ZZZD Compulsory inspections (1) This section applies if GASCOR or a water authority has evidence to suggest— (a) that particular plumbing work does not comply with the plumbing laws; or (b) that a real threat to health and safety exists as a result of the improper installation or maintenance of a sanitary drain or an appliance or fixture that uses water or gas; or (c) that there is infiltration of groundwater or stormwater into private sanitary drains— (i) from surface areas; or (ii) from downpipes; or (iii) due to gullies being fitted at an inappropriate level; or (iv) due to defective plumbing work.

221ZZZDA Definitions In this Division— authorised officer means— (a) the Plumbing Industry Commissioner; (b) a plumbing inspector; (c) a compliance auditor; (d) any other person authorised by the regulations made under this Part to issue plumbing infringement notices under this Division; infringement penalty in relation to an offence, means— (a) the penalty specified in column 2 of Schedule 5 in respect of the corresponding offence listed in column 1 of that Schedule; or (b) a penalty prescribed for the purposes of this Division in respect of a prescribed offence; prescribed offence means—

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s. 221ZZZE

(a) an offence against a section listed in column 1 of Schedule 5; or (b) an offence— (i) against this Part or the regulations made under this Part; and (ii) which is prescribed for the purposes of this Division.
S. 221ZZZE inserted by No. 39/1996 s. 5, substituted by No. 75/1998 s. 17 (as amended by No. 74/2000 s. 3(Sch. 1 item 14)), amended by No. 32/2006 s. 94(Sch. item 4(1)-(3)), substituted by No. 31/2007 s. 14.

221ZZZE

Plumbing infringement notices

(1) An authorised officer may serve a plumbing infringement notice on any person that the authorised officer has reason to believe has committed a prescribed offence. (2) An offence referred to in subsection (1) for which a plumbing infringement notice may be served is an infringement offence within the meaning of the Infringements Act 2006. (3) For the purposes of subsection (1), a plumbing infringement notice must— (a) be in the form required by the Infringements Act 2006 and state the infringement penalty in respect of the offence; and (b) include details of the additional steps (if any) required to expiate the offence. (4) An infringement penalty prescribed for the purposes of this Division must not exceed 10 penalty units.

S. 221ZZZEA inserted by No. 31/2007 s. 14.

221ZZZEA Additional steps required by infringement notice (1) Additional steps required to expiate a prescribed offence may include, but are not limited to, the following— (a) the carrying out of any plumbing work if

273

failure to carry out that work constitutes the offence; (b) stopping any plumbing work that constitutes the offence; (c) doing or omitting to do anything in order to remedy a contravention of this Part or the regulations made under this Part. (2) If a plumbing infringement notice requires additional steps to be taken to expiate a prescribed offence, and, before the end of the remedy period set out in the notice, or if the authorised officer allows, at any time before the service of a summons in respect of the offence, the person served with the notice informs the authorised officer that those steps have been taken— (a) the authorised officer must, without delay, find out whether or not those steps have been taken; and (b) serve on the person a notice stating whether or not those steps have been taken. (3) A statement in a notice under subsection (2) that additional steps have been taken is for all purposes conclusive proof of that fact. 221ZZZEB Proceedings where plumbing infringement notice requiring additional steps is served Nothing in this section prejudices the institution or the prosecution of proceedings for an offence for which a plumbing infringement notice has been served if the notice states that a penalty must be paid and additional steps must be taken to expiate the offence, and— (a) the amount of the penalty is not paid before the end of the period for payment shown in the notice or of any further period allowed by the authorised officer; or
S. 221ZZZEB inserted by No. 31/2007 s. 14.

274

s. 221ZZZEB

s. 221ZZZF

(b) the person served with the notice does not, before the end of the remedy period shown in the notice or of any further period allowed by the authorised officer, take those additional steps.

(1) The Commission may conduct an inquiry as to whether there is proper cause for taking disciplinary action against a person who is, or has been, licensed or registered under this Part. (2) The Commission may conduct such an inquiry on its own motion or after receiving a complaint concerning the conduct or competence of any person who is licensed or registered under this Part. 221ZZZG Grounds on which disciplinary action may be taken (1) There is proper cause for taking disciplinary action against a person who is, or has been, licensed or registered under this Part if— (a) he or she obtained the licence or registration by fraud or misrepresentation or the concealment of facts; (b) he or she has been convicted of an offence against the plumbing laws; (c) he or she has been convicted of any offence involving fraud, dishonesty, drug trafficking

S. 221ZZZF(2) amended by No. 75/1998 s. 5(b).

S. 221ZZZG inserted by No. 39/1996 s. 5.

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s. 221ZZZG

or violence that was punishable by imprisonment for 6 months or more; (d) he or she has breached any requirement of this Act or the regulations made under this Part;
S. 221ZZZG(1) (d) amended by No. 31/2007 s. 15.

(e) he or she has had his or her licence or registration or other authorisation to engage in plumbing work outside Victoria cancelled or suspended for any reason other than his or her failure to renew that licence, registration or other authorisation; (f) he or she has been guilty of, or was a party to, any negligence or incompetence in connection with the carrying out of any plumbing work; (g) he or she has carried out, or was a party to, the carrying out of plumbing work otherwise than in a good and workmanlike manner; (h) he or she directed or permitted the carrying out of plumbing work otherwise than in a good and workmanlike manner; (i) he or she has been guilty of any fraudulent conduct in regard to the carrying out of any plumbing work; (j) he or she, in the course of carrying out any plumbing work— (i) used materials that he or she knew, or reasonably ought to have known, were defective; or (ii) was a party to the carrying out of any plumbing work using materials that he or she knew, or reasonably ought to

276

s. 221ZZZH

have known, were defective; (k) he or she has failed to comply with a reasonable direction of an insurer in respect of the completion or rectification of defective plumbing work or any payment to be made to the insurer in respect of the completion or rectification of defective plumbing work in accordance with required insurance.
S. 221ZZZH inserted by No. 39/1996 s. 5.

221ZZZH Procedure concerning inquiries

S. 221ZZZH(1) amended by No. 75/1998 s. 5(b).

(1) To start an inquiry, the Commission must give the following details in writing to the person who is to be the subject of the inquiry— (a) the grounds on which the inquiry is to be conducted; and (b) if the inquiry is based on a complaint, the substance of that complaint; and (c) the time and place at which the inquiry will be held; and

S. 221ZZZH (1)(d) amended by No. 75/1998 s. 5(b).

(d) the fact that the person may make oral and written submissions to the Commission in relation to the inquiry; and (e) a copy of section 221ZZZJ.

S. 221ZZZH(2) amended by No. 75/1998 s. 5(b).

(2) The Commission may conduct an inquiry in the absence of the person whose conduct or competence is being inquired into if it is satisfied that the person received the details listed in subsection (1). 221ZZZI How inquiry to be conducted Clauses 12, 15, 16, 17, 18(1) and 19 of Schedule 3

(1) At the end of an inquiry, if the Commission is satisfied that proper cause for taking disciplinary action against a person exists, the Commission may do one or more of the following— (a) reprimand the person; (b) if the person is licensed or registered under this Part— (i) impose new conditions on, or vary the existing conditions of, the licence or registration; (ii) suspend the licence or registration for a period of up to 12 months; (iii) cancel the licence or registration immediately or with effect from a specified later date; (c) if the person is licensed or registered under this Part, require the person to pass a specified examination or complete a specified period of training or attend a specified course of instruction; (d) disqualify the person from being licensed or registered for a specified period of up to

(f) order the person to pay the Commission a penalty of not more than 100 penalty units unless— (i) a charge has been filed in the Magistrates' Court in respect of the matter; or (ii) the matter has been dealt with by a court exercising its criminal jurisdiction; or (iii) the matter has been dealt with by the issue of an infringement notice;

S. 221ZZZJ (1A) inserted by No. 36/2008 s. 24(2).

(1A) If the Commission determines under subsection (1) to suspend or cancel a licence or registration of a person because the person has breached a requirement of this Part, the Commission may suspend the operation of that suspension or cancellation on condition that the person complies with specified conditions. (1B) In making a decision under subsection (1A), the Commission may take into account— (a) whether the person has any previous conviction for breaching the requirements of this Part; and (b) whether the conduct of the person in breaching the requirements leading to the determination to suspend or cancel the licence or registration was out of character and unlikely to reoccur; and (c) whether there are mitigating circumstances that warrant the decision.

S. 221ZZZJ (1B) inserted by No. 36/2008 s. 24(2).

S. 221ZZZJ (1C) inserted by No. 36/2008 s. 24(2).

(1C) The Commission may revoke the suspension of

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s. 221ZZZK

the suspension or cancellation of a licence or registration and reinstate the original suspension or cancellation if the Commission is satisfied that the person has during the suspension period— (a) breached a requirement of this Part; or (b) breached a condition of the suspension. (1D) If the original suspension or cancellation of a licence or registration is reinstated, the period of suspension begins, or the cancellation takes effect, on the day following the day that the decision to reinstate the suspension or cancellation is made. (2) If the Commission makes an order under this section, the Registrar may give a copy of the order to any person or body who the Registrar thinks should be told of the order. 221ZZZK Presumption of suspension for repeated offences concerning compliance notices (1) This section applies if the Commission is satisfied, at the end of an inquiry— (a) that a person has contravened section 221ZH; and (b) that the person has contravened that section on at least 2 separate occasions within the past 3 years. (2) The Commission must suspend the person's licence for a period of up to 3 months unless it is satisfied that there is a good reason for not doing so. 221ZZZL Commission may revoke cancellation or suspension The Commission may at any time revoke any order it has made under section 221ZZZJ cancelling or suspending a person's licence or
S. 221ZZZK(2) amended by No. 75/1998 s. 5(b). S. 221ZZZJ (1D) inserted by No. 36/2008 s. 24(2).

221ZZZM Commission may compensate victims of unsatisfactory plumbing work If the Commission makes an order under section 221ZZZJ(1)(f), the Commission may pay an amount up to the amount referred to in the order to any person who, in the opinion of the Commission, has suffered loss as a result of any unsatisfactory work that was a reason for the making of the order. 221ZZZN Procedural matters concerning Commission subcommittees conducting inquiry or taking disciplinary action (1) Clauses 8(3), (5) and (8) of Schedule 3 apply to any sub-committee of the Commission that is conducting an inquiry under this Division as if— (a) a reference to a panel was a reference to the sub-committee; and

(1) A person may apply to the Victorian Civil and Administrative Tribunal for the review of a decision by the Commission in relation to— (a) a refusal to license or register him or her or to renew his or her licence or registration; (b) any conditions imposed on his or her licence or registration;

(2) The Commission must pay into the fund all money received or recovered by, or paid to, the Commission. (3) The Commission may pay out of the fund— (a) any money required to meet its costs and expenses in administering and enforcing this Part and in carrying out its functions; (b) any money required to refund any licence, registration or endorsement fee paid in respect of a licence, registration or endorsement that was not granted, renewed or made;

S. 221ZZZR (3)(c) inserted by No. 75/1998 s. 5(e).

(c) the remuneration and allowances of the Commissioner and members of the Plumbing Industry Advisory Council. (4) The Commission may invest any part of the fund

S. 221ZZZR(4) amended by No. 75/1998 s. 5(b).

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s. 221ZZZS

that is not immediately required for the purposes of the Commission in any manner approved by the Treasurer. 221ZZZS Commission may disclose cooling tower information The Commission may disclose any information it obtains under this Part that relates to a cooling tower system to the Secretary to the Department of Human Services.
S. 221ZZZS inserted by No. 39/1996 s. 5, repealed by No. 75/1998 s. 5(d), new s. 221ZZZS inserted by No. 85/2000 s. 10, amended by Nos 68/2001 s. 3(3), 46/2008 s. 248(7).

221ZZZT Register of Plumbers (1) The Registrar must keep a register that contains the details required by subsection (2) in respect of all people who are— (a) licensed by the Commission;

(c) licensed or registered by the Registrar under section 221W. (2) The Registrar must record in the register the following details in respect of a person— (a) his or her name, residential and business address and business telephone number; (b) the type of licence or registration he or she holds and the classes or types of plumbing

284

s. 221ZZZU

work in respect of which he or she is licensed or registered; (c) his or her licence or registration number; (d) the day on which he or she was first, and last, licensed or registered; (e) the day on which his or her licence or registration expires; (f) the conditions (if any) to which the licence or registration is subject; (g) if he or she is insured, details of the insurance he or she holds for the purposes of this Part;
S. 221ZZZT (2) (h) amended by No. 75/1998 s. 5(b).

(h) details of any disciplinary action taken by the Commission in respect of him or her; (i) any other details required by the regulations. (3) The Registrar may keep the register in any form he or she considers to be appropriate (including in an electronic or mechanical form). (4) The Registrar must remove from the register the details of any person who has not held a current licence or registration within the last 2 years. (5) A certificate certifying as to any matter relating to the contents of the register and purporting to be signed by the Registrar is evidence of the facts stated in the certificate.

S. 221ZZZU inserted by No. 39/1996 s. 5.

221ZZZU Minister may specify work to be specialised plumbing work (1) The Minister may declare any form of work that requires specialised plumbing skill or knowledge to be carried out safely and competently to be specialised plumbing work for the purposes of this Part.

285

s. 221ZZZV

(2) A declaration takes effect on the date it is published in the Government Gazette, or on any later date specified in the declaration. (3) In making a declaration, the Minister must specify what qualifications, knowledge or experience a person must have to be able to be licensed or registered by the Commission to carry out the specialised plumbing work declared by the declaration. (4) A declaration ceases to have any effect 1 year after it first takes effect. (5) If all or part of any work that is declared to be specialised plumbing work falls within the description of an existing class of plumbing work, a reference to that class of plumbing work is to be read as if that class did not include the specialised plumbing work, unless the contrary intention appears. 221ZZZV Regulations (1) The Governor in Council may make regulations for or with respect to— (a) prescribing standards (expressed in terms of performance, energy efficiency, water efficiency, environmental efficiency, types of material, methods of construction, products or otherwise) in relation to plumbing work other than— (i) gasfitting work; and (ii) work on the water supply or sewerage distribution system of a water authority; (ab) the accreditation, certification or authorisation of materials or products in relation to plumbing work, including the labelling, marking or testing of those materials or products;
S. 221ZZZV (1)(ab) inserted by No. 31/2007 s. 17(2). S. 221ZZZV inserted by No. 39/1996 s. 5. S. 221ZZZV (1)(a) amended by Nos 66/2004 s. 15, 31/2007 s. 17(1). S. 221ZZZU(3) amended by Nos 75/1998 s. 5(b), 31/2007 s. 16.

286

s. 221ZZZV

S. 221ZZZV (1)(b) amended by Nos 75/1998 s. 5(b), 36/2008 s. 25(a).

(b) fees for the purposes of this Part (including fees for examinations or assessments conducted by, or on behalf of, the Commission); (c) prescribing what constitutes specialised plumbing work;

S. 221ZZZV (1)(d) substituted by No. 36/2008 s. 25(b).

(d) classes of plumbing work, including, where those classes differ from any classes previously specified, transitional provisions setting out how— (i) the new classes relate to the old classes; and (ii) licences and registrations to carry out the old classes translate into licences and registrations to carry out the new classes; (e) the qualifications or experience needed to be eligible to be licensed or registered with respect to a particular class of plumbing work;

S. 221ZZZV (1)(f) amended by No. 36/2008 s. 25(a).

(f) examinations or assessments for the purposes of this Part; (g) generally regulating and controlling— (i) the carrying out of plumbing work by licensed and registered plumbers; (ii) advertising by licensed and registered plumbers in relation to plumbing work;

S. 221ZZZV (1)(ga) inserted by No. 85/2000 s. 11.

(ga) regulating the construction, installation, alteration, relocation or replacement of a cooling tower or of any part of a cooling tower system;

287

s. 221ZZZW

(gb) requiring the installation and use of specified devices or equipment in cooling towers or cooling tower systems, including in existing cooling towers and cooling tower systems; (gc) prescribing offences against this Part and the regulations made under this Part for the purposes of Division 10A; (gd) prescribing, for the purposes of Division 10A, penalties not exceeding 10 penalty units for the offences prescribed under paragraph (gc); (h) generally providing for any other matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act. * * * * *

(3) Despite section 262(f), regulations made under subsection (1)(a) may impose a penalty not exceeding 20 penalty units for a contravention of the regulations. 221ZZZW Incorporation by reference of Plumbing Code of Australia or other document by regulations Any regulation made under this Part may apply, adopt or incorporate, either wholly or in part and with or without any modification, any matter contained in the Plumbing Code of Australia or any other document—
S. 221ZZZW inserted by No. 39/1996 s. 5, repealed by No. 39/1996 s. 29, new s. 221ZZZW inserted by No. 31/2007 s. 18.

288

s. 221ZZZW

(a) as in force or as issued, published or made at a particular time; or (b) as in force or as issued, published or remade from time to time. __________________

289

s. 222

PART 13—GENERAL ENFORCEMENT PROVISIONS

Division 1—Powers of Minister in relation to councils 222 Order of Minister If, after due inquiry, the Minister considers that a council or municipal building surveyor has not satisfactorily carried out any function given to the council or building surveyor under this Act or the regulations, the Minister may, by order, direct the council— (a) to carry out the function within a specified time; or (b) to cause the building surveyor to carry out the function within a specified time, as the case requires. 223 Hearing of council (1) Before making an order under section 222, the Minister must give the council concerned an opportunity to be heard. (2) The Minister may, by instrument, designate any person or persons— (a) to hear a council or any person representing the council; and (b) to report on that hearing to the Minister; and (c) to make any recommendation to the Minister. (3) A hearing under subsection (2) is deemed to be the hearing of the council by the Minister for the purposes of subsection (1).

290

s. 224

224 Effect of failure to comply with order (1) If a function is not carried out to the satisfaction of the Minister within the time specified in an order under section 222, the Minister may— (a) make any further order that the Minister considers necessary to secure the satisfactory carrying out of the function; or (b) authorise any person to carry out the function. (2) If the Minister, or any person on the Minister's behalf, carries out any function under subsection (1), the Minister may by further order direct the council to pay all costs, charges and expenses incurred in carrying out that function and specified in that order (including remuneration of any persons appointed, engaged or employed to carry out that function). (3) The Minister may recover the costs, charges and expenses specified in an order under subsection (2) in a court of competent jurisdiction as a debt due to the Crown. 225 Powers of Minister and authorised persons For the purposes of section 224— (a) the Minister and any persons authorised by the Minister have and may exercise all or any of the powers of the council, the municipal building surveyor and the staff of the council in carrying out a function; and (b) the Minister may institute and carry on any legal or other proceeding as fully and completely as if the Minister were the council or municipal building surveyor concerned; and

291

s. 226

(c) the Minister may institute proceedings against the council or municipal building surveyor or a member of staff of the council without giving that council, building surveyor or member any notice of action required to be given by any Act relating to councils or local government; and (d) the council, the councillors, the municipal building surveyor and members of the staff of the council must assist the Minister and obey all directions given by the Minister in the exercise of any of the powers of the Minister under that section. 226 Minister may seek administrative order If a council has failed to carry out or cause the carrying out of a function in accordance with an order under section 222 or 223, the Minister has sufficient standing to maintain proceedings for an order in the nature of mandamus or for an order for review under the Administrative Law Act 1978 to enforce the carrying out of that function by the council or the municipal building surveyor (as the case requires). 227 Other powers not affected This Division— (a) is in aid of and not in derogation from any other powers of the Minister or the Governor in Council; and (b) shall not prejudice any other proceeding or remedy against or liability of a council or municipal building surveyor.
Pt 13 Div. 1A (Heading and ss 227A– 227D) inserted by No. 34/1997 s. 23.

Division 1A—Performance audits

292

s. 227A

s. 227C

S. 227A inserted by No. 34/1997 s. 23.

227A Performance auditors (1) The Commission may appoint performance auditors for the purposes of this Division. (2) The Commission must give every person that it appoints as a performance auditor an identity card that displays a photograph of the person and states the person's name and the fact that he or she is authorised to conduct performance audits for the Commission. (3) A performance auditor to whom an identity card has been issued must when on duty produce that card on demand. P 1 penalty unit.

S. 227B inserted by No. 34/1997 s. 23.

227B Functions of performance auditor (1) The function of a performance auditor is to examine work carried out by registered building practitioners— (a) to ensure that the work has been competently carried out and does not pose any risk of injury or damage to any person; and (b) to ensure that this Act and the building regulations have been complied with. (2) The Commission is to determine in its absolute discretion which work is to be examined by a performance auditor.

S. 227C inserted by No. 34/1997 s. 23.

227C Powers of performance auditors (1) In carrying out his or her functions under this Division, a performance auditor may—

293

s. 227D

(a) enter any residence or the land on which a residence is situated between the hours of 8 am and 6 pm; and (b) enter any other building or land at any reasonable time. (2) A performance auditor must give the occupier (if any) of a building or land not less than 24 hours notice, or such other notice as may be agreed with the occupier, before the performance auditor enters the building or land under subsection (1). (3) In carrying out his or her functions under this Division, a performance auditor may— (a) require a person who is, or was, a registered building practitioner to produce any document that relates to any work that the auditor is examining; and (b) make copies of any document that relates to any work that the auditor is examining; and (c) require a person who is, or was, a registered building practitioner to supply any other information or document that relates to any work that the auditor is examining; and (d) report to the Commission, or a person authorised by the Commission, the results of any examination he or she conducts.

227D Building practitioner must give information to performance auditor (1) A person must comply with any requirement made

S. 227D inserted by No. 34/1997 s. 23.

294

by a performance auditor under section 227C(3) (a) or (c). P 50 penalty units. (2) However, a person need not answer any question put to him or her under section 227C(3)(c) if the answer might incriminate him or her.
Pt 13 Div. 1B (Heading and s. 227E) inserted by No. 66/2004 s. 16.

Division 1B—Inspections of safety and emergency equipment

S. 227E inserted by No. 66/2004 s. 16.

227E Powers of inspection of chief officer and municipal building surveyor (1) The chief officer and the municipal building surveyor may either jointly or separately inspect — (a) any safety or emergency installations, equipment or services in a building or place of public entertainment to determine whether they are performing and being maintained in accordance with the building regulations or any relevant occupancy permit; or (b) any records or reports relating to the operation and maintenance of any safety or emergency installations, equipment or services in a building or place of public entertainment to determine whether they are being kept or displayed in accordance with the building regulations or any relevant occupancy permit. (2) The chief officer must provide the municipal building surveyor with a report of an inspection by the chief officer under subsection (1) within

295

s. 228

5 business days of that inspection. (3) The municipal building surveyor must ensure that the owner of a building or place of public entertainment that has been inspected in accordance with subsection (1) is provided, within 10 business days of that inspection, with an inspection report signed by the municipal building surveyor. Division 2—Powers of entry 228 Authorised persons (1) In this Division— authorised person means— (a) a municipal building surveyor; or (b) a private building surveyor appointed under Part 6; or (c) the Commission; or (ca) the Plumbing Industry Commission; (d) a Minister, public authority or person who is authorised or required by this Act or the regulations to carry out any work or inspection or any other function other than the Building Practitioners Board; or (da) a plumbing inspector appointed under Part 12A; (db) a compliance auditor appointed under Part 12A; (e) a person authorised under subsection (2). (2) A person or body referred to in paragraphs (a) to (d) of the definition of "authorised person" may authorise in writing any person to exercise a
S. 228(2) amended by No. 34/1997 s. 24(1). S. 228(1) def. of authorised person amended by Nos 39/1996 s. 8(1), 75/1998 s. 5(f).

296

s. 229

power under this Division on its behalf.
S. 228(3) substituted by No. 34/1997 s. 24(2). S. 228(4) inserted by No. 34/1997 s. 24(2).

(3) The person or body who or which authorises a person under subsection (2) must give an identity card to that authorised person. (4) The identity card must display a photograph of the authorised person to whom it is issued and state the person's name and the fact that he or she is an authorised person. (5) An authorised person to whom an identity card has been issued must produce that card for inspection— (a) before exercising a power under this Act or the regulations; and (b) at any time during the exercise of a power under this Act or the regulations if asked to do so. P 1 penalty unit.

229 Power of entry—inspections of buildings, places of public entertainment etc. (1) Subject to subsection (2), an authorised person may enter any building or land for the purpose of carrying out any inspection, authorised or required by this Act or the regulations, of— (a) the building; or (b) a place of public entertainment; or (c) any equipment, installation, service, records or reports relating to the building or to the place of public entertainment; or (d) building work or plumbing work. (2) An entry under subsection (1) may be carried out —

S. 229(2)(a) substituted by No. 31/2007 s. 19(1).

(a) in the case of a residence or the land on which a residence is situated—

297

s. 230

(i) between the hours of 8 a.m. and 6 p.m.; or (ii) at any other time with the written consent of the occupier of the residence or land; and (b) in any other case, at any reasonable time. (3) An authorised person must, before obtaining a consent under subsection (2)(a)(ii), inform the occupier of the residence or land of the purpose of the inspection to be carried out at the residence or land. 230 Notice of entry An authorised person must give the occupier (if any) of a building or land not less than 24 hours notice, or such other notice as may be agreed with the occupier, before the authorised person enters the building or land under section 229(2)(a)(i) or 229(2)(b). 231 Powers of entry—enforcement (1) If an authorised person has reasonable grounds for suspecting that there is on any building or land a particular thing that may be evidence of the commission of an offence against this Act or the regulations, the authorised person, with any assistants the authorised person considers necessary, may— (a) enter the building or land; and (b) search for the thing. (2) An authorised officer must not enter a building or land under this section except— (a) with the written consent of the occupier of the building or land; or
S. 229(3) inserted by No. 31/2007 s. 19(2).

(b) under the authority of a search warrant.
S. 231A inserted by No. 34/1997 s. 26.

231A Occupier to be given copy of consent (1) An occupier who consents in writing to entry and search of his or her building or land under section 231 must be given a copy of the signed consent immediately. (2) If, in any proceeding, a written consent is not produced to the court, it must be presumed, until the contrary is proved, that the occupier did not consent to the entry and search.

S. 231B inserted by No. 34/1997 s. 26.

231B Search warrant (1) An authorised person may apply to a magistrate for the issue of a search warrant in relation to a particular building or land if the authorised officer believes on reasonable grounds that there is, or may be within the next 72 hours, on the building or land a particular thing that may be evidence of the commission of an offence against this Act or the regulations. (2) A magistrate may issue a search warrant under this section if the magistrate is satisfied by the evidence on oath, whether oral or by affidavit, that there are reasonable grounds for suspecting that there is, or may be within the next 72 hours, on a building or land a particular thing that may be evidence of the commission of an offence against this Act or the regulations.

(3) The search warrant may authorise an authorised person named in the warrant and any assistants the authorised person considers necessary— (a) to enter the building or land, or the part of building or land, named or described in the warrant; and

299

s. 231C

(b) to search for a thing named or described in the warrant. (4) In addition to any other requirement, a search warrant issued under this section must state— (a) the offence suspected; and (b) the building or land to be searched; and (c) a description of the thing for which the search is to be made; and (d) any conditions to which the warrant is subject; and (e) whether entry is authorised to be made at any time or during stated hours; and (f) a day, not later than 7 days after the issue of the warrant, on which the warrant ceases to have effect. (5) A search warrant must be issued in accordance with the Magistrates' Court Act 1989 and in the form prescribed under that Act. (6) The rules to be observed with respect to search warrants mentioned in the Magistrates' Court Act 1989 extend and apply to warrants under this section.

231C Announcement before entry (1) Before executing a search warrant, the authorised person named in the warrant or a person assisting the authorised person must announce that he or she is authorised by the warrant to enter the building or land and give any person at the building or land an opportunity to allow entry to the building or land.

S. 231C inserted by No. 34/1997 s. 26.

300

(2) The authorised person or a person assisting the authorised person need not comply with subsection (1) if he or she believes on reasonable grounds that immediate entry to the building or land is required to ensure— (a) the safety of any person; or (b) that the effective execution of the search warrant is not frustrated.
S. 231D inserted by No. 34/1997 s. 26.

231D Copy of warrant to be given to occupier If the occupier or another person who apparently represents the occupier is present at a building or land when a search warrant is being executed, the authorised person must— (a) identify himself or herself to that person by producing his or her identity card for inspection by that person; and (b) give to that person a copy of the execution copy of the warrant.

S. 231E inserted by No. 34/1997 s. 26.

231E Powers of authorised persons on entry (1) An authorised person who exercises a power of entry of a building or land under section 231 or 231B may if the thing searched for is found during the search— (a) inspect and take photographs (including video recordings), or make sketches, of the building or land or the thing; and (b) inspect, and make copies of, or take extracts from, the thing if it is a document. (2) An authorised person who exercises a power of entry of a building or land under section 229 may inspect and take photographs (including video recordings), or make sketches of the building or land or the building work or plumbing work concerned.

301

s. 231F

231F Powers of authorised person to require information or documents (1) An authorised person who exercises a power of entry of a building or land under this Division may, to the extent that it is reasonably necessary to determine compliance with this Act or the regulations, require a person at the building or land— (a) to give information to the authorised person; and (b) to produce documents to the authorised person; and (c) to give reasonable assistance to the authorised person. (2) An authorised person who has reasonable grounds to believe that an offence has been committed under this Act or the regulations may, to the extent that it is reasonably necessary to determine compliance with this Act or the regulations, require a person— (a) to give information to the authorised person in relation to the carrying out of building work or the work of a building practitioner; and (b) to produce documents to the authorised person relating to building work or the work of a building practitioner. (3) A person must not refuse or fail, without reasonable excuse, to comply with a requirement made under subsection (1) or (2). P 50 penalty units. (4) A person must not— (a) give information that the person knows to be false or misleading in a material particular;

S. 231F inserted by No. 34/1997 s. 26.

302

s. 231G

s. 233

or (b) produce a document that the person knows to be false or misleading in a material particular without indicating the respect in which it is false or misleading and, if practicable, providing correct information. P
S. 231G inserted by No. 34/1997 s. 26.

50 penalty units.

231G Copy of documents If a person produces a document to an authorised person in accordance with a requirement under section 231F, the authorised person may make copies of, or take extracts from, the document. 231H Protection against self-incrimination A person may refuse or fail to give information, produce a document or do any other thing that the person is required to do by or under this Division if the giving of the information, the production of the document or the doing of that other thing would tend to incriminate the person. 232 Entry in emergency Despite sections 229, 231 and 231B, an authorised person may enter a building or land without a search warrant at any time if the safety of the public or the occupants is at risk or an emergency order under Part 8 or an emergency plumbing order under section 221ZZF applies to the building or land. 233 Police to assist authorised persons An authorised person may request the assistance of a member of the police force and a member of the police force may assist the authorised person to take any action authorised by this Division. 234 Impersonation of authorised person A person must not impersonate an authorised

S. 231H inserted by No. 34/1997 s. 26.

S. 232 substituted by No. 34/1997 s. 26.

303

s. 235

person. P 60 penalty units.
S. 234A inserted by No. 34/1997 s. 27.

234A Confidentiality (1) An authorised person must not, except to the extent necessary— (a) to carry out functions or to exercise powers under this Act or the regulations; or (b) in connection with the administration or enforcement of this Act or the regulations; or (c) to give any information the authorised person is authorised, permitted or required to give under this Act or any other Act or the regulations under this Act— give to any other person, whether directly or indirectly, any information gained in the exercise of the powers as an authorised person. P 20 penalty units. (2) Subsection (1) does not prevent the giving of information— (a) for the purpose of any legal proceedings arising out of this Act or the regulations, or of any report of those proceedings; or (b) with the consent of the Minister.

Division 3—Evidence and notices 235 Evidence of ownership or occupation (1) The following is evidence that a person is the owner or occupier of land in any legal proceedings under this Act or the regulations— (a) evidence that the person is liable to be rated

304

s. 236

in respect of the land; or (b) evidence by a certificate as to any recording in the Register or by a certified reproduction of a registered instrument given under section 114(2) of the Transfer of Land Act 1958 that any person is the registered proprietor of an estate in fee-simple or of a leasehold estate held of the Crown in any land; or (c) evidence by the certificate of the RegistrarGeneral or a Deputy Registrar-General authenticated by the seal of the Registrar-General that any person appears from the memorial of any deed, conveyance or instrument to be the last registered owner of any land. (2) The Registrar-General must provide a certificate under subsection (1)(c) on the written application of a person authorised under Division 4 to bring proceedings who must certify that it is required for legal proceedings under this Act or the regulations. 236 Service of documents—generally (1) Any document to be served on or given to a person under this Act or the regulations may be served on or given to the person by— (a) delivering the document to the person; or (b) leaving the document at the person's usual or last known place of residence or business with a person apparently not less than 16 years of age and apparently residing or employed at that place; or (c) sending the document by post addressed to the person at the person's usual or last known place of residence or business or in any other prescribed manner. 305

s. 237

(2) A building order made under section 112 may be served on any person apparently in charge of the site on which building work is carried out. (3) If a document is to be served on or given to the owner or occupier of any land and the name of that person is not known the document may be addressed to "the owner" or "the occupier". (4) If a document is to be served on or given to the owner or occupier of any land, the document may be put up in a conspicuous position on the land if the name and address of the owner are not known and there is no occupier of the land. (5) If the owner has authorised a person to act on behalf of the owner under this Act or the regulations, any document served on or given to that person under this Act or the regulations is deemed to have been served on or given to the owner. (6) If a document to be served on or given to an owner or occupier of any land is properly served on or given to the owner or occupier of the land the document is binding on every subsequent owner or occupier of the land.

237 Service on Boards (1) A document to be served on the Building Practitioners Board must be taken to have been served if it is served on the Registrar of the Building Practitioners Board. (2) A document to be served on the Building Appeals Board must be taken to have been served if it is served on the Registrar of the Building Appeals Board.

(3) A document to be served on the Plumbing Industry Commission must be taken to be served if it is served on the Registrar of the Plumbing Industry Commission. 238 Building surveyor may rely on certificate by other registered building practitioner

S. 238(1) substituted by No. 18/1998 s. 10.

(1) A municipal building surveyor or a private building surveyor, in carrying out a function under this Act or the regulations, may rely on a certificate by a registered building practitioner in a prescribed category or class of practitioners— (a) that proposed building work of a prescribed class complies with any provision of this Act or the regulations; or (b) that building work of a prescribed class complies with any provision of this Act or the regulations. (2) A registered building practitioner must not give a certificate under subsection (1) in respect of building work unless the certificate states that the registered building practitioner has inspected that building work.

239 Certificate of Registrar A certificate of the Registrar of the Building Practitioner's Board specifying that a person is or is not registered in the Register of Building Practitioners or the category or class of registration of a person or that a building practitioner's certificate has been issued in respect of a person is evidence and, in the absence of evidence to the contrary, proof of the matters stated in the certificate.

307

s. 241

240 Appointment of agents An owner of a building or land may in writing authorise another person to make any application, appeal, referral or representation under this Act on behalf of the owner. Division 4—Offences and penalties 241 Proceedings for offences (1) Proceedings for an offence against Part 3, 4, 5, 7 or 8 or the building regulations within a municipal district may be brought by— (a) a person authorised by the council; or (b) a prescribed person or a person in a prescribed class of persons. * * * * *
S. 241(1A) inserted by No. 85/2000 s. 12, repealed by No. 46/2008 s. 248(8).

(2) Proceedings for an offence against Part 11 or any regulations made for the purposes of that Part or to recover money payable under that Part may be brought by any person authorised in writing by the Building Practitioners Board. (2A) Proceedings for an offence against Part 12A or any regulations made for the purpose of that Part may be brought by the Plumbing Industry Commission, Energy Safe Victoria or any person authorised by the Plumbing Industry Commission.
S. 241(2A) inserted by No. 39/1996 s. 8(4), amended by No. 75/1998 s. 5(g), substituted by No. 91/2000 s. 38, amended by No. 39/2005 s. 54. S. 241(2B) inserted by No. 91/2000 s. 38.

(2B) Proceedings to recover money payable under

308

s. 241A

Part 12A may be brought by the Plumbing Industry Commission or any person authorised by the Plumbing Industry Commission. (3) Proceedings for any offence against this Act or the regulations may be brought by— (a) the Commission; or (b) any person authorised by the Minister or the Commission; or (c) a member of the police force. (4) An authority given by any person or body under this section must be in writing and may be given generally or in relation to a particular matter. (5) Until evidence is given to the contrary proof is not required of any authority to bring proceedings under this section. (6) No person other than a person authorised by or under this section may bring proceedings for an offence against this Act or the regulations. (7) Despite anything in any Act, proceedings for an offence against this Act or the regulations may be commenced within the period of 3 years after the commission of the alleged offence.
S. 241A inserted by No. 91/1995 s. 154.

241A Additional penalties for unregistered builders carrying out domestic building work (1) If a court finds an unregistered builder guilty of carrying out domestic building work in contravention of this Act the court may, in addition to any penalty for that offence, direct that the builder is ineligible to apply for registration under Part 11 for not more than 3 years. (2) The Building Practitioners Board must comply with a direction under subsection (1).

309

s. 243

241B Report of inspector is evidence A copy of a report of an inspector given to the Commission under section 48 of the Domestic Building Contracts Act 1995 relating to an unregistered builder, is evidence in any proceeding against the builder under this Act or the regulations. 242 Application of penalties (1) If an offence has been prosecuted by a person authorised by a council, all penalties recovered in relation to the offence must be paid into the municipal fund of that council. (2) If an offence has been prosecuted by the Commission or a person authorised by the Minister, the Commission or the Building Practitioners Board, all penalties recovered in relation to the offence must be paid into the Building Administration Fund. (3) If an offence has been prosecuted by, or on behalf of, the Plumbing Industry Commission, all penalties recovered in relation to the offence must be paid into the fund established under section 221ZZZR.

243 Offences by bodies corporate If a body corporate is guilty of an offence against this Act or the regulations, any person who is concerned in or takes part in the management of the body corporate who was in any way, by act or omission, directly or indirectly knowingly concerned in or party to the commission of the offence is also guilty of that offence. 244 Offence to obstruct

310

A person must not without reasonable excuse obstruct any person or body in carrying out any function or taking any action that the person or body is authorised or required to carry out or take under this Act or the regulations. P 5 penalty units. 245 Offences by or relating to registered building practitioners (1) A registered building practitioner must not ask for or receive or obtain, or offer or agree to ask for or receive or obtain, any property or benefit of any kind (other than the consideration or remuneration payable under his or her contract of engagement or appointment) for himself or herself or any other person, on an understanding that the carrying out by him or her of his or her functions under this Act or the regulations will, in any manner, be influenced or affected or that he or she will not carry out those functions. P 100 penalty units. (2) A person must not, in order to influence or affect a registered building practitioner in carrying out his or her functions under this Act or the regulations or to influence a registered building practitioner not to carry out those functions— (a) give or confer or promise or offer to give or confer any property or benefit of any kind (other than the consideration or remuneration payable under the registered building practitioner's contract of engagement or appointment) to or on a registered building practitioner or any other person; or (b) remove or threaten to remove any property or benefit of any kind from a registered building practitioner or any other person. P 100 penalty units, in the case of a 311

s. 246

natural person. 500 penalty units, in the case of a corporation. 246 Offence to make false or misleading statement A person must not knowingly make any false or misleading statement or provide any false or misleading information to a person or body carrying out any function under this Act or the regulations. P 10 penalty units. 247 Offence relating to disclosure of pecuniary interest A person must not contravene clause 6 of Schedule 3. P 10 penalty units. 248 Offence for agent to act without authority (1) A person must not act on behalf of an owner of a building or land for the purpose of making any application, appeal or referral under this Act or the regulations unless the person is authorised in writing by the owner to do so. P 5 penalty units. (2) A person or body carrying out a function under this Act or the regulations may accept production of a document purporting to be an authorisation, by an owner, of a person to act on behalf of the owner as evidence that the person is so authorised. (3) Nothing in this Act requires a person or body carrying out a function under this Act or the regulations to inquire whether an agent is acting under this Act or the regulations with the written authority of the owner. * * * * *
S. 249 repealed by No. 91/1995 s. 155.

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s. 251

250 Right of owner to carry out required work on occupied building or land (1) If the owner of a building or land is required to carry out any work or do any other thing under this Act or the regulations the owner may give a written notice to the occupier of the building or land— (a) stating particulars of the work to be carried out or thing to be done; and (b) requiring the occupier to permit the owner and any other person to enter the building or land and carry out the work or do the thing. (2) If the occupier of the building or land does not comply with a notice within 7 days after the notice is given, the owner of the building or land may apply to the Magistrates' Court for an order. (3) The Magistrates' Court may make an order requiring the occupier of the building or land to permit the owner and any other person to enter the building or land and carry out the work or do the thing. (4) The occupier of the building or land must comply with the order. P 10 penalty units. (5) While the occupier of the building or land fails to comply with the order the owner of the building or land is not liable for an offence for failing to carry out the work or do the thing. 251 Occupier or registered mortgagee may carry out work (1) If the owner of a building or land is required under this Act or the regulations to carry out any work or do any other thing and the owner does not

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carry out the work or do the thing, the occupier of that building or land or any registered mortgagee of the land or the land on which the building is situated, may carry out the work or do the thing. (2) An occupier may— (a) recover any expenses necessarily incurred under subsection (1) from the owner as a debt due to the occupier; or (b) deduct those expenses from or set them off against any rent due or to become due to the owner. (3) A registered mortgagee may— (a) recover any expenses necessarily incurred under subsection (1) from the owner as a debt due to the mortgagee; or (b) give notice in writing of those expenses to the mortgagor. (4) On the giving of notice under subsection (3)(b), the expenses are deemed to be added to the principal sum owing under the mortgage. (5) If the mortgagor is not the owner the mortgagor may recover the amount deemed under subsection (4) to be added to the principal sum from the owner as a debt due to the mortgagor. (6) This section applies despite any covenant or agreement to the contrary. 252 Vacation of building or land (1) The Commission or a council may apply to the Magistrates' Court for a warrant under this section if a person refuses to vacate a building or land when required to do so by order under this Act. (2) An application must be accompanied by a copy of

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the order. (3) The Magistrates' Court must issue a warrant under this section if it is satisfied that the building or land referred to in the application is the same as the building or land referred to in the order. (4) A warrant under this section may be directed to— (a) a specified member of the police force; or (b) generally all members of the police force. (5) A warrant under this section directs and authorises a person to whom it is directed— (a) to enter the building or land (by force if necessary); and (b) with such assistance as is necessary, to compel all persons for the time being occupying the building or land to vacate that building or land. (6) The Magistrates' Court may exercise jurisdiction under this section despite any claim of title, question of property or suggestion of right which may be made in any proceedings under this section. 253 Additional orders that may be made by the court (1) The Commission or a municipal building surveyor or any other prescribed body or person may bring proceedings in any court of competent jurisdiction for an order under this section in the event of a breach, or threatened or apprehended breach, of this Act or the regulations or a notice, permit, order or determination issued or made under this Act (including a notice or order or determination of the Building Appeals Board). (2) The court, if it is satisfied that a breach, or threatened or apprehended breach, has been or will be committed or is likely to be committed,

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may make any one or more of the following orders— (a) an order to restrain the breach or other conduct by the person by whom the breach is committed or by whom the threatened or apprehended breach is likely to be committed; (b) an order requiring building work or protection work to be carried out; (c) an order requiring the payment of money into court in respect of any building work carried out by, or to be carried out by, the municipal building surveyor; (d) any necessary ancillary orders. (3) An application for an order under this section may be made during proceedings for an offence under this Act or the regulations and an order may be made instead of or in addition to any penalty imposed in those or any other proceedings.

(4) An application may not be made under this section as to a notice or order or other matter that is subject to a proceeding before the Building Appeals Board that has not been finally disposed of. Division 5—Building infringements 254 Definitions In this Division— authorised officer means the holder of a prescribed office or the holder of an office in a prescribed class of officers;

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prescribed offence means an offence against this Act or the building regulations which is prescribed for the purpose of this Division. 255 Building infringements (1) An authorised officer may serve a building infringement notice on the owner or the occupier of any building or land or any person carrying out building work, if the authorised officer has reason to believe that that person has committed a prescribed offence in respect of the building or land.
S. 255(2) substituted b y No. 32/2006 s. 94(Sch. item 4(4)). S. 255(2A) inserted by No. 32/2006 s. 94(Sch. item 4(4)).

(2) An offence referred to in subsection (1) for which a building infringement notice may be served is an infringement offence within the meaning of the Infringements Act 2006. (2A) In addition to the details required under section 13 of the Infringements Act 2006, the details of the additional steps (if any) required to expiate the offence must be included in an infringement notice served under subsection (1).

(3) The prescribed penalty for a prescribed offence is the amount, not exceeding 10 penalty units, prescribed for that offence for the purposes of this Division. 256 Additional steps (1) Additional steps required to expiate a prescribed offence may include, but are not limited to, the following— (a) carrying out any work if failure to carry out the work constitutes the offence; (b) stopping any work that constitutes the offence;

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(c) doing or omitting to do anything in order to remedy a contravention of the building regulations. (2) If a building infringement notice requires additional steps to be taken to expiate an offence, and, before the end of the remedy period set out in the notice, or if the authorised officer allows, at any time before the service of a summons in respect of the offence, the person served with the notice informs the authorised officer that those steps have been taken— (a) the authorised officer must, without delay, find out whether or not those steps have been taken; and (b) serve on the person a notice stating whether or not those steps have been taken. (3) A statement in a notice under subsection (2) that additional steps have been taken is for all purposes conclusive proof of that fact. * * * * *
Ss 257, 258 repealed by No. 32/2006 s. 94(Sch. item 4(5)). S. 259 (Heading) inserted by No. 32/2006 s. 94(Sch. item 4(6)).

259 Proceedings where building infringement notice requiring additional steps is served (1) Nothing in this section prejudices the institution or the prosecution of proceedings for an offence for which a building infringement notice has been served— * * * * *

S. 259(1)(a) repealed by No. 32/2006 s. 94(Sch. item 4(7)(a)).

(b) if the notice states that a penalty must be paid and additional steps must be taken to

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expiate the offence, and— (i) the amount of the penalty is not paid before the end of the period for payment shown in the notice or of any further period allowed by the authorised officer; or
S. 259(1)(b)(ii) amended by No. 32/2006 s. 94(Sch. item 4(7)(b)).

(ii) the person served with the notice does not, before the end of the remedy period shown in the notice or of any further period allowed by the authorised officer, take those additional steps. * * * * *

259A Improper use of information A member or former member of the Building Appeals Board, the Building Practitioners Board, the Building Advisory Council, the Building Regulations Advisory Committee, the Plumbing Industry Commission, the Plumbing Industry Advisory Council or a person employed or formerly employed for the purposes of this Act to assist any of these Boards, Committees or Commissions must not make improper use of information acquired by virtue of the person's position to gain directly or indirectly a pecuniary advantage for the person or for any other person. P 20 penalty units. 260 Supreme Court—limitation of jurisdiction (1) It is the intention of this section to alter or vary section 85 of the Constitution Act 1975 to the extent necessary— (a) to prevent the Supreme Court from entertaining actions of a kind referred to in section 128 and clause 10 of Schedule 4; and (b) to ensure that proceedings are determined in accordance with sections 129 to 134. (2) It is the intention of section 134A to alter or vary section 85 of the Constitution Act 1975.

(1) The Governor in Council may make regulations for or with respect to—
S. 261(1)(a) amended by No. 34/1997 s. 28.

(a) building permits, occupancy permits and temporary approvals, including the duration of permits and approvals and the matters to be complied with by the relevant building surveyor before a permit or approval can be issued; (aa) the matters which a reporting authority is required or permitted to take into account in reporting on, or considering whether to consent to, an application for a building permit; (ab) applying section 188A to specified classes of applications for building permits; (b) conditions on permits and approvals including a condition requiring persons skilled in safety matters to be present when a place of public entertainment is occupied; (ba) certificates of consent including a requirement that any matter in an application for a certificate be verified by statutory declaration; (c) the making, keeping and production of records of permits, certificates of consent, approvals, notices and orders and the keeping and production of other plans and documents provided under this Act or the regulations; (d) the keeping of registers of permits, certificates of consent, approvals, notices and orders; (e) the issue of building certificates relating to

notices and orders under this Act and regulations; (ea) the provision of certificates as to compliance with conditions on permits and approvals; (f) the qualifications (whether obtained inside or outside Victoria) for registration in the different categories or classes of the Register of Building Practitioners, including but not limited to degrees, diplomas, certificates, accreditations, authorities, examinations and periods of training or experience; (g) examinations for registration in the different categories or classes of the Register of Building Practitioners, including the determination of the subjects to be examined, the conduct of examinations and eligibility for examination; (h) the conditions prerequisite to registration in the different categories or classes (including but not limited to conditions as to age, training, experience, and authority to practise) of the Register of Building Practitioners; (i) the form and divisions of the Register of Building Practitioners and the information to be included in it; (j) the professional standards to be observed by registered building practitioners in the different categories or classes; (ja) the information to be included in, or to accompany, any notice or application required under this Act or the regulations; (k) forms; * * * * *
S. 261(1)(ka) inserted by No. 85/2000 s. 13(1), repealed by No. 46/2008 s. 248(9). S. 261(1)(ja) inserted by No. 66/2004 s. 19(1)(c). S. 261(1)(ea) inserted by No. 18/1998 s. 11. S. 261(1)(f) amended by No. 71/1995 s. 23(1)(b).

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S. 261(1)(l) amended by No. 71/1995 s. 23(1)(c).

(l) fees payable for applications, inspections, referrals, requests, appeals and lodgement of documents under this Act and for other services provided and work done by persons and bodies under this Act and the regulations; (la) maximum fees payable for consideration by reporting authorities of applications for permits referred to them under this Act or the regulations for consent and report;

(m) the procedure for making applications, referrals, requests and appeals under this Act or the regulations; (n) the giving of copies of documents to specified persons and bodies and the manner and form in which copies of documents may be given under this Act or the regulations;
S. 261(1)(o) amended by No. 68/2001 s. 3(3).

(o) the proceedings of the Building Commission, the Building Advisory Council, the Building Appeals Board, the Building Practitioners Board and the Building Regulations Advisory Committee; (p) the circumstances in which refunds are payable out of the Building Administration Fund; (q) bonds and guarantees and the circumstances in which refunds are payable in respect of them; (r) requiring or authorising inspections of

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buildings, building work, places of public entertainment and services, installations and equipment located in or in relation to buildings, building work or places of public entertainment; (ra) requiring or authorising the testing of essential services in buildings, building work and places of public entertainment; (s) building practitioner's certificates; (t) prescribing any office or position or class of offices or positions in— (i) the police force; or (ii) the Metropolitan Fire Brigades Board or any brigade under its control; or (iii) the Country Fire Authority or any brigade under its control; or (iv) a government department; or (v) a public authority— as a prescribed office or prescribed class of offices for the purpose of Division 5 of Part 13; (u) prescribing offences against the building regulations for the purposes of Division 5 of Part 13; (v) prescribing penalties not exceeding 10 penalty units for the offences prescribed under paragraph (u); * * * * *
S. 261(1)(w)(x) repealed by No. 32/2006 s. 94(Sch. item 4(8)). S. 261(1)(ra) inserted by No. 68/2001 s. 13(1)(b).

(y) generally providing for any other matter or thing required or permitted by this Act to be

262 Additional powers Any regulations made under this Act— (a) may be of general or limited application; and (b) may differ according to differences in time, place and circumstance; and (c) may confer a discretionary authority or impose a duty on or leave any matter to be determined or approved by a specified person or body or class of persons or bodies; and
S. 262(d) amended by Nos 71/1995 s. 23(2), 39/1996 s. 10(a), 31/2007 s. 21(a).

(d) may provide for the exemption of persons or classes of persons, or buildings or classes of buildings, land or classes of land or building work or plumbing work or classes of building work or plumbing work, or materials or products or classes of materials or products in relation to building work or plumbing work, from any or all of the provisions of this Act or the regulations including any fees prescribed under this Act or the regulations; and

S. 262(e) amended by No. 31/2007 s. 21(b).

(e) may confer power on a council or municipal building surveyor or private building surveyor to exempt any building or classes of

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buildings or building work or classes of building work or any materials or products or classes of materials or products in relation to building work from all or any of the requirements of the building regulations; (ea) may confer power on a compliance auditor or plumbing inspector to exempt any plumbing work or any materials or products or classes of materials or products in relation to plumbing work from all or any of the requirements of regulations made under Part 12A; (f) may impose penalties not exceeding 20 penalty units for a contravention of the regulations. 263 Transitional provisions Schedule 4 has effect. 264 Transitional provisions relating to the Building (Plumbing) Act 1998 Schedule 6 has effect.
S. 264 repealed by No. 34/1997 s. 30(d), new s. 264 inserted by No. 75/1998 s. 18. S. 265 inserted by No. 68/2001 s. 14. S. 262(ea) inserted by No. 39/1996 s. 10(b), amended by No. 31/2007 s. 21(c).

S. 262(f) amended by No. 66/2004 s. 19(2).

265 Transitional—Effect of change to Commission's name (1) The Building Commission is the same body as the Building Control Commission, despite the change to its name by section 3(3) of the Building (Amendment) Act 2001 and no act, matter or thing is to be affected because of that change of name. (2) On and from the commencement of this section, in any Act or in any instrument made under any Act or in any other document of any kind, a reference to the Building Control Commission is deemed to

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s. 269

be a reference to the Building Commission, unless the contrary intention appears.
S. 266 inserted by No. 68/2001 s. 15.

266 Transitional—Effect of change of membership (1) The Building Appeals Board is deemed to be the same body despite the change to its membership made by section 8(1) of the Building (Amendment) Act 2001. (2) The Building Practitioners Board is deemed to be the same body despite the change to its membership made by section 8(2) of the Building (Amendment) Act 2001. (3) The Building Advisory Council is deemed to be the same body despite the change to its membership made by section 8(3) of the Building (Amendment) Act 2001. (4) The Building Regulations Advisory Committee is deemed to be the same body despite the change to its membership made by section 8(4) of the Building (Amendment) Act 2001.

S. 267 inserted by No. 60/2003 s. 18.

267 Transitional—proportionate liability Despite the repeal of sections 131, 132 and 133 by the Wrongs and Limitation of Actions Acts (Insurance Reform) Act 2003, those sections continue to apply to and in relation to an award of damages in a building action commenced before that repeal. 268 Transitional—Effect of change of membership The Building Practitioners Board is deemed to be the same body despite the change to its membership made by section 36 of the Architects (Amendment) Act 2004. 269 Transitional—owner-builders (1) Subject to subsection (2), section 137B(7) as amended by the Building Amendment Act 2008

S. 268 inserted by No. 35/2004 s. 37.

S. 269 inserted by No. 36/2008 s. 26.

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applies in relation to a building whether the building was constructed before or after the commencement of section 3 of that Act. (2) Section 137B(7) as in force immediately before the commencement of section 3 of the Building Amendment Act 2008 continues to apply in relation to a building if the required insurance under section 137B(2) was obtained in respect of that building before that commencement. 270 Transitional—building surveyors On the commencement of section 5(2) of the Building Amendment Act 2008, any person who was registered under this Act as a building surveyor immediately before that commencement is taken to be registered as a building surveyor (unlimited). __________________
S. 270 inserted by No. 36/2008 s. 27.

1. Design and siting of buildings including— (a) matters relating to the availability of light to, and the overshadowing of, nearby buildings and allotments; (b) matters relating to privacy and overlooking, in relation to nearby buildings and allotments; (c) matters relating to the height of a building, and the distances from buildings to the boundaries of an allotment or to nearby buildings; (d) matters relating to how much of an allotment may be used for buildings, how much of an allotment may be covered by impermeable surfaces and the provision of open spaces on an allotment; (e) matters relating to the preservation of trees, and of architectural or heritage features; (f) matters relating to the provision of car parking in relation to an allotment; (g) matters relating to the use of impermeable surface materials on an allotment and their effect on drainage and runoff; (h) matters relating to the amenity of nearby buildings and allotments; (i) matters relating to the energy efficiency of

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buildings; (j) matters relating to associated fences and boundary walls. 2. Form and contents of plans and specifications for building work. 3. Preparation of land for building work. 4. The construction of buildings. 5. Certificates of accreditation for building products, construction methods or designs, components or systems connected with building work. 6. The use and testing of specified building materials. 7. Structural strength, integrity, stability, durability and insulating properties of building work and materials. 8. Fire prevention, fire fighting equipment and precautions and other emergency installations, services and equipment. 9. The designation of areas liable to bushfires. 10. Prevention of flooding of buildings and designation of areas liable to flooding. 11. The designation of alpine areas. 12. The environmental and energy efficiency of buildings. 13. Moisture resistance of buildings. 14. Heating, cooling, ventilation, air conditioning and lighting of buildings. 15. Noise resistant construction of buildings. 16. The resistance of buildings to infestation and the designation of areas liable to infestation. 17. The construction and maintenance of floor, wall and roof coverings and of finishes to buildings. 18. The construction and maintenance of lifts and lift-shafts in buildings.

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Sch. 1 Pt 1 cl. 19 repealed by No. 68/2001 s. 16.

*

*

*

*

*

20. Utility, safety and hygiene services, installations and equipment located in, or related to, buildings and places of public entertainment. 21. The structural adequacy of advertising signs and hoardings. 22. Fixtures projecting from buildings and dangers arising out of projections from construction work. 23. The protection of adjoining property. 24. Use of public space for construction work. 25. Access to and egress from buildings and places of public entertainment. 26. Suitability of buildings and places of public entertainment for occupation. 27. The number of people who can be accommodated in buildings and places of public entertainment. 28. Use and maintenance of buildings and places of public entertainment including use and maintenance and replacement of services, installations and equipment referred to in this Schedule. 29. Changes of use of buildings and places of public entertainment. 30. The manner of alteration and demolition of and additions to buildings, including the connecting or dividing of buildings.

31. The classification of buildings and places of public entertainment and the application of building regulations to different classes of buildings and places of public

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entertainment. 32. The provision of certificates as to compliance with any or all of the building regulations or with respect to any other matters under the building regulations. 33. The records to be kept of— (a) the carrying out of building work; and (b) the maintenance of buildings and places of public entertainment; and (c) the maintenance and replacement of services, installations and equipment referred to in this Schedule. 34. The safety of buildings and places of public entertainment. * * * * *
Sch. 1 Pt 2 amended by No. 34/1997 s. 29, repealed by No. 68/2001 s. 4(2).

(b) contain any matters, and be accompanied by any documents, prescribed for the purposes of this clause; and
Sch. 2 cl. 1(c) amended by No. 71/1995 s. 24.

(c) be accompanied by the fees— (i) determined by the council in accordance with the Local Government Act 1989; or (ii) in the case of an application to a private building surveyor, determined by the private building surveyor; and

(d) be accompanied by the appropriate prescribed lodgement fee (if any); and

(e) if the relevant building surveyor is required to give a copy of the application to an authority which is a reporting authority, be accompanied by the relevant fees (if any) fixed by the reporting authority under clause 4 for payment to the reporting authority.

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2 Building surveyor may request more information (1) The relevant building surveyor may require an applicant to provide additional information or documents or to amend the application before the relevant building surveyor deals with or deals further with the application. (2) The prescribed time within which the relevant building surveyor must decide an application for a permit— (a) ceases to run at the time when the relevant building surveyor requires the applicant to provide additional information or documents or amend the application; and (b) recommences to run only when the information, documents or amended application are supplied to the relevant building surveyor. 3 Application may be refused if information not provided (1) If additional information or a document or an amended application required to be supplied by an applicant is not supplied within the time specified by the relevant building surveyor, the relevant building surveyor may refuse the application. (2) Before refusing an application under subclause (1), the relevant building surveyor must give the applicant 30 days notice in writing of his or her intention to refuse the application. 4 Reporting authorities must be consulted (1) Subject to this Schedule, the relevant building surveyor must not decide an application for a permit that is required by this Act or the regulations or by any other Act or regulations to be reported on, or consented to, by a reporting authority unless the report or consent has been
Sch. 2 cl. 4(1) amended by No. 28/2000 s. 17(2).

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obtained. (2) Unless exempted by this Schedule, the relevant building surveyor must give a copy of an application to each reporting authority within the prescribed time after the application is received by the relevant building surveyor.
Sch. 2 cl. 4(3) inserted by No. 28/2000 s. 17(3).

(3) The relevant building surveyor must forward to a reporting authority with the copy of an application, any fees paid to the building surveyor under clause 1(e) in respect of that application and that reporting authority. (4) A reporting authority may fix fees (not exceeding the maximum fees prescribed for the purposes of this clause) for applications or classes of applications referred to it under this Act or the regulations. (5) If the reporting authority is a council, the fees must be determined in accordance with the Local Government Act 1989. (6) A reporting authority other than a council must publish a notice in the Government Gazette of any fees fixed by it under this clause. 4A Reporting authority must have regard to section 188A guidelines in some cases (1) This clause applies if— (a) a reporting authority is required by this or any other Act or by the regulations to report on, or to consent to, an application for a building permit for a single dwelling, within the meaning of section 188A(4); and (b) the regulations provide that section 188A applies to applications of that kind. (2) In reporting on, or considering whether to consent

to, the application, the reporting authority— (a) must have regard to the guidelines for the time being in force under section 188A; and (b) in having regard to those guidelines, if in the opinion of the reporting authority the application may result in a nearby allotment suffering detriment, must give the owner of the allotment an opportunity to make a submission in respect of the possible detriment; and (c) must consider any submission made under paragraph (b); and (d) must refuse to give its consent to the application if the application does not comply with any matter set out in those guidelines. 5 Applicant may obtain report or consent (1) An applicant for a permit may obtain a required report or consent from a reporting authority. (1A) If the applicant applies for a consent or report to a reporting authority, the application must be accompanied by the relevant fees (if any) fixed by the reporting authority under clause 4.
Sch. 2 cl. 5(1A) inserted by No. 28/2000 s. 17(4), amended by Nos 68/2001 s. 13(2)(b)(i) (ii), 66/2004 s. 20(3).

(2) An applicant for a permit must notify the relevant building surveyor when the application is made as to whether the applicant has applied or intends to apply for any required report or consent by a reporting authority;

(3) The relevant building surveyor need not obtain a

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report or consent from a reporting authority if the applicant— (a) notifies the building surveyor that the applicant has applied for or intends to apply for that report or consent; or (b) supplies the relevant building surveyor with a copy of the report made in the last 12 months or of the consent. (4) An applicant who applies for and obtains a required report or consent must supply a copy of the report or consent to the relevant building surveyor— (a) when the application for the permit is made; or (b) within any further time that is prescribed or allowed by the building surveyor. 6 What if a reporting authority (other than a council or council officer) fails to supply a report or consent? (1) Despite anything to the contrary in the regulations or any other Act or regulations, the relevant building surveyor may proceed to decide an application without a report being obtained if a copy of the report is not supplied by the reporting authority (other than a council or an officer of a council) within the prescribed time. (2) A reporting authority (other than a council or an officer of a council) is deemed to have consented to a permit if the authority has not within the prescribed time informed the relevant building surveyor or the applicant of— (a) its consent to the application; or (b) refusal of consent and the reasons for that refusal.

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(3) An applicant for a permit may appeal to the Building Appeals Board against a failure of a reporting authority which is a council or an officer of a council to inform the relevant building surveyor or the applicant within the prescribed time of— (a) its consent to the application; or (b) its refusal of consent and the reasons for that refusal. (4) The Building Appeals Board must consider an appeal under subclause (3) and may make any order that it considers appropriate in the circumstances. (5) This clause does not apply to a responsible authority under the Planning and Environment Act 1987 in its capacity as a reporting authority for the purposes of section 29A of this Act. (6) A reference in this clause to a council, with respect to an application, is to be read as including a reference to any reporting authority that has to comply with clause 4A(2) in reporting on, or considering whether to consent to, the application. 6A What if the reporting authority is the responsible authority under the Planning and Environment Act 1987? (1) This clause applies only to a responsible authority under the Planning and Environment Act 1987 in its capacity as a reporting authority for the purposes of section 29A of this Act. (2) Despite anything to the contrary in the regulations or any other Act or regulations, the relevant building surveyor may proceed to decide an application without a report being obtained if a copy of the report is not supplied by the reporting authority within the prescribed time.

Sch. 2 cl. 6(3) inserted by No. 71/1995 s. 25.

Sch. 2 cl. 6(4) inserted by No. 71/1995 s. 25.

Sch. 2 cl. 6(5) inserted by No. 28/2000 s. 17(5).

Sch. 2 cl. 6(6) inserted by No. 30/2001 s. 8.

Sch. 2 cl. 6A inserted by No. 28/2000 s. 18.

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(3) Subject to subclause (4), a reporting authority is deemed to have consented to a permit if the authority has not within the prescribed time informed the relevant building surveyor of— (a) its consent to the application; or (b) its refusal of consent and the reasons for that refusal. (4) A reporting authority is deemed to have refused to consent to a permit if— (a) the authority is required under section 29A to refuse its consent; and (b) the authority has not within the prescribed time informed the relevant building surveyor of that refusal. 7 Relevant building surveyor must consider report (1) The relevant building surveyor must consider any report of a reporting authority supplied under this Schedule before deciding the relevant application for a permit. (2) In deciding an application, the relevant building surveyor must implement the recommendations of a prescribed reporting authority in relation to a prescribed matter. (3) Except as provided in subclause (2), the relevant building surveyor is not required to implement any of the recommendations in a report by a reporting authority.
Sch. 2 cl. 7(4) inserted by No. 28/2000 s. 19.

(4) For the purposes of subclause (2) and without limiting that subclause— (a) a responsible authority under the Planning and Environment Act 1987 is a prescribed reporting authority; and

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(b) a demolition to which section 29A applies is a prescribed matter. _______________

1 Term of Appointment (1) Subject to this clause, a member of a Board holds office for a period, not exceeding 3 years, specified in the instrument of his or her appointment. (2) A member of a Board is eligible for reappointment. (3) The instrument of appointment of a member of a Board may specify terms and conditions of appointment not inconsistent with this Act or the regulations. (4) A member of a Board appointed by the Minister can be removed from office by the Minister. 2 Remuneration and allowances A member of a Board (including a chairperson or deputy chairperson) who is not a member of the public service or the holder of a full-time statutory office is entitled to receive— (a) remuneration; and (b) travelling or other allowances— from time to time fixed by the Minister in respect of that member.

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3 Vacancies (1) A member of a Board may resign from membership by letter signed by the member and delivered to the Minister. (2) The office of a member of a Board becomes vacant if the member— (a) becomes bankrupt13; or (b) is convicted in Victoria of an offence punishable on first conviction with imprisonment for a term of 12 months or more or is elsewhere convicted of an offence which, if committed in Victoria, would be so punishable; or (c) ceases to hold a position or qualification which made the member eligible for appointment as a member. 4 Application of Public Administration Act 2004 The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member of a Board in respect of the office of member.
Sch. 3 cl. 4 amended by No. 46/1998 s. 7(Sch. 1), substituted b y Nos 108/2004 s. 117(1) (Sch. 3 item 21.4), 80/2006 s. 26(Sch. item 6).

5 Acting members (1) If a member of a Board is unable to perform the duties of his or her office, the Minister may appoint a person to act in the place of the member during that period of inability. (2) An acting appointment is to be for any term and on any conditions determined by the Minister. (3) The Minister may at any time terminate an acting appointment.

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(4) An acting member of a Board has all the functions of the member for whom he or she is acting. (5) An acting member of a Board is entitled to receive any remuneration or travelling or other allowances fixed from time to time by the Minister in respect of that acting member. (6) The provisions of this Schedule (except clause 2) applying to members of a Board also apply to acting members. 6 Pecuniary interests (1) If a member of a Board has a direct or an indirect pecuniary interest in a matter which is about to be or is being considered by the Board, the member must as soon as possible after the relevant facts come to his or her knowledge disclose the nature of the interests— (a) to the Minister, in the case of the chairperson; or (b) to the chairperson, in the case of any other member. (2) A member who has disclosed a pecuniary interest in a matter under subclause (1) must not be present while the Board is considering or deciding the matter and must not take part or further part in that consideration or decision. (3) An act or decision of a Board is not invalid merely because a member contravenes subclause (1) or (2). (4) Subclause (3) does not prevent a member of a Board being removed from office because he or she has contravened subclause (1) or (2).

(5) For the purposes of this clause, a member of a

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Board must not be taken to have a pecuniary interest in a matter merely because the member is engaged in the building industry or in any matter connected with that industry. (6) Without limiting what is a pecuniary interest in a matter for the purposes of this clause, a person must be taken to have a pecuniary interest in a matter relating to a building or building work if the person— (a) is or was involved in designing the building; or (b) has assisted in preparing or making an application for a building permit or occupancy permit for the building or work; or (c) is the relevant building surveyor in respect of an application for a permit for that building or building work. 7 Membership of Board not office or place of profit A member of a Board must not, in respect of the office of member, be taken to hold an office or place of profit under the Crown which would— (a) prevent the member sitting or voting as a member of the Legislative Council or Legislative Assembly; or (b) make void the member's election to the Legislative Council or Legislative Assembly; or (c) prevent the member continuing to be a member of the Legislative Council or Legislative Assembly; or (d) subject the member to liability to a penalty under the Constitution Act 1975.
PART 2—GENERAL PROCEDURE

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8 Building Appeals Board may sit in panels (1) For the purposes of performing any of its functions, the Building Appeals Board may be constituted by one or more panels of its members. (2) The chairperson of the Building Appeals Board may determine which and how many of its members are to constitute a panel and what proceedings or classes of proceedings are to be allocated to each panel. (3) If a panel of two or more members includes the chairperson of the Building Appeals Board, he or she is the chairperson of the panel. (4) If a panel of two or more members includes the deputy chairperson but not the chairperson of the Building Appeals Board, the deputy chairperson is the chairperson of the panel. (5) If a panel of two or more members does not include the chairperson or deputy chairperson of the Building Appeals Board, the members of the panel may elect the chairperson of the panel. (6) If, after a proceeding has commenced before a panel of two or more members, a member of the panel becomes unavailable— (a) if the parties to the proceeding agree, the proceeding may be continued and completed before the remaining members of the panel; and (b) if the member who is unavailable is the chairperson of the panel another chairperson of the panel must be chosen in accordance with this clause. (7) If the parties do not agree to continue a proceeding under subclause (6) the chairperson of

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the Building Appeals Board must arrange for the matter to be reconsidered by another panel, and that other panel may have regard to the earlier proceedings. (8) The chairperson of the Building Appeals Board must arrange for records to be kept of the proceedings and decisions of each panel of the Board. (9) Except where this Schedule otherwise expressly provides, a provision of this Part or Part 3 applying to a Board applies to a panel. 9 Decisions not affected by certain matters An act or decision of a Board is not invalid only because— (a) of a defect or irregularity in the appointment of a member or acting member; or (b) of a vacancy in its membership; or (c) the occasion for the appointment of an acting member has ceased to exist. 10 Meetings (1) Subclauses (2), (3) and (5) do not apply to the Building Appeals Board when constituted by a panel. (2) At a meeting of a Board a quorum is half the number of the members currently holding office and, if this would not be a whole number, the next highest whole number. (3) The functions of a Board may be performed at a meeting at which there is a quorum.

(4) At a meeting a decision of a Board is the decision of the majority of the members present and voting

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at the meeting and if voting is equal, the person presiding at the meeting has a casting vote as well as a deliberative vote. (5) The person who is to preside at a meeting of a Board is— (a) the chairperson, if present; or (b) the deputy chairperson (if any), if the chairperson is not present; or (c) a person elected by the members present, if the chairperson is not present and either there is no deputy chairperson or the deputy chairperson is not present. (6) Subject to this Act and the regulations, the procedure of a Board is in its discretion.
Sch. 3 cl. 10(7) inserted by No. 96/2004 s. 22.

(7) If a member of a Board holds 2 or more positions on the Board ex officio— (a) he or she is only entitled to exercise a single deliberative vote at meetings of the Board, regardless of how many of those positions he or she holds on the Board; and (b) for the purposes of determining the total number of members of the Board currently holding office for the purposes of determining whether a quorum of the members is present, all the ex officio positions held by the member are to be counted as one member.

11 Authentication of documents (1) A document required or authorised to be prepared

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by a Board must be taken to be authenticated by the Board if— (a) in the case of a document of a panel of the Building Appeals Board, it is signed by the Registrar of the Building Appeals Board and either the chairperson of the panel or the chairperson of the Building Appeals Board; or (b) in any other case, it is signed by the chairperson or deputy chairperson of the Board and the Registrar of the Board or another person employed for the purposes of this Act and designated by the Board for that purpose. (2) The production of a document purporting to be a copy of a record of an act or decision of a Board and purporting to be signed by the Registrar is evidence and, in the absence of evidence to the contrary, is proof that a decision in those terms was duly made by the Board or that the stated act was duly done by the Board.
PART 3—PROCEEDINGS BEFORE THE BUILDING APPEALS BOARD

12 Additional powers of Board This Part is in addition to and does not take away from any other provision of this Act. 13 How to commence a proceeding (1) A person may commence a proceeding before the Building Appeals Board by serving on the Board an application, a notice of appeal or a notice of referral of a matter to the Board, as appropriate. (2) A document commencing a proceeding—

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(a) must specify— (i) the nature of the proceeding; and (ii) the grounds for commencing the proceeding; and (iii) the relief sought; and (b) must be in accordance with the regulations (if any). (3) The person who serves a document commencing a proceeding must without delay serve a copy of that document on— (a) the decision-maker, if the proceeding is an appeal; and (b) in the case of a matter referred to the Building Appeals Board, any other person with a right to refer that matter to the Board; and (c) in the case of an application for a modification of a provision of the building regulations that relates to a building or land on a register under the Historic Buildings Act 1981, the Historic Buildings Council; and (d) any other party concerned. 14 Parties to a proceeding A person who, under clause 13, is entitled to be served with a copy of a document commencing a proceeding before the Building Appeals Board is a party to that proceeding.

15 Conducting a proceeding

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(1) The Building Appeals Board must give the parties to the proceeding reasonable opportunity to make — (a) oral submissions at a hearing; or (b) written submissions in the case of a proceeding that is not a hearing. (2) Sections 14, 15, 16 and 21A of the Evidence (Miscellaneous Provisions) Act 1958 apply to the Building Appeals Board in relation to a proceeding as if the Board were a Board appointed by the Governor in Council. (3) The Building Appeals Board— (a) may proceed by accepting written submissions or by conducting a hearing; and (b) may inform itself in any manner it thinks fits; and (c) is bound by the rules of natural justice; and (d) is not bound by any rule or practice as to evidence; and (e) may conduct a proceeding in private if it considers it in the public interest or the interest of justice to do so, but must otherwise hold its hearing in public; and (f) must proceed with as little formality and technicality and with as much expedition as the requirements of this Act and the regulations and the proper consideration of the matter before it permit; and (g) may proceed with the hearing in the absence of a party to the proceeding if it is satisfied that the party has been given reasonable notice of the date, time and place of the hearing; and (h) may at any time adjourn the proceeding; and
Sch. 3 cl. 15(2) amended by No. 69/2009 s. 54(Sch. Pt 2 item 7.1).

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(i) may deal with proceedings or classes of proceedings together if it is satisfied that they relate to the same parties, the same building, land or building work or the same or related subject-matter; and (j) may seek the independent advice of a person to assist it in dealing with the proceeding. (4) A party to a proceeding may appear at a hearing before the Building Appeals Board or do anything else in relation to a proceeding before that Board either personally or through an agent. (5) The Board must disclose to each party to a proceeding any advice it receives under subclause (3)(j) and give each party a reasonable opportunity to make submissions about that advice before determining the proceeding. 16 Determinations and reasons (1) A determination of the Building Appeals Board must be in writing. (2) The determination may include any order as to costs that the Building Appeals Board, on the application of a party to the proceeding, considers is just. (3) The determination may include any other incidental order or direction that the Building Appeals Board considers is necessary. (4) The Building Appeals Board must without delay cause a copy of its determination in any proceeding to be served on each party to the proceeding. (5) Within one month after being served with a copy of the Building Appeals Board's determination, or within any further time allowed by the Board, a party to a proceeding may request the Board to give to the party written reasons for its

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determination. (6) The Building Appeals Board must comply with a request received under subclause (5) without delay after receiving it. (7) The Building Appeals Board may make public any of its determinations in any manner it thinks fit. (8) The Building Appeals Board is not bound by its earlier determinations. 17 Costs Unless the Building Appeals Board otherwise determines, a party to a proceeding before the Board must bear his, her or its own costs. 18 Correction of errors (1) On its own initiative or at the request of a party to a proceeding, the Building Appeals Board or a panel of the Board may make a determination correcting an earlier determination in which there is— (a) a clerical error or accidental slip or omission; or (b) an evident material miscalculation of figures; or (c) an evident material mistake in the description of a person, property or thing. (2) The powers of the Board under subclause (1) may also be exercised on behalf of the Board by— (a) the chairperson of a panel of two or more members; or (b) the chairperson of the Building Appeals Board, if the relevant panel or the chairperson of the panel is unavailable. 19 Enforcement of determination

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A determination of the Building Appeals Board may be enforced as if it were a judgment or order of a court of competent jurisdiction. _______________

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SCHEDULE 4 TRANSITIONAL PROVISIONS
Section 263

1 Definitions In this Schedule— former body means any of the following bodies established under the old Act— (a) the Building Control Technical Advisory Council; (b) an advisory committee (including a special advisory committee); (c) a Development Approvals Co-ordinating Committee; (d) the Building Control Accreditation Authority; (e) the Building Control Qualification Board; (f) a Building Referees Board; (g) the Building Referees Panel; former officer means any of the following people appointed or employed for the purposes of the old Act— (a) a Development Approvals Co-ordinator; (b) the Registrar of the Building Control Accreditation Authority; (c) the Registrar of Building Referees Boards; (d) the Registrar of the Building Control Qualification Board;

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(e) the Director of Building Control; (f) the State Building Surveyor; (g) the Secretary of the Building Control Technical Advisory Council; (h) any other officer or employee of the public service; old Act means the Building Control Act 1981; proceeding includes an inquiry, investigation, appeal, reservation of a question of law, dispute, reference or application but does not include an application for accreditation or for a certificate of qualification as a building surveyor or building inspector. 2 General transitional provisions (1) This Schedule does not affect or take away from the Interpretation of Legislation Act 1984. (2) Without limiting subclause (1), in declaring that certain provisions of this Act are to be treated as re-enacting with modifications certain provisions of the old Act, this Schedule must not be taken to — (a) limit the operation of any provision of the Interpretation of Legislation Act 1984 relating to re-enactment; or (b) be an exhaustive list of the provisions of the old Act re-enacted by this Act. (3) If this Schedule provides that a provision of the old Act continues to apply to any matter or thing, then any regulation or other instrument having effect under that Act for the purposes of that provision also continues to apply to that matter or thing.

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(4) If— (a) a provision of the old Act; or (b) a provision of the Victoria Building Regulations 1983; or (c) a provision of a regulation or instrument referred to in subclause (3)— continues to apply to a matter or thing, it continues to apply as in force immediately before that provision was repealed or revoked. (5) This Schedule applies despite anything to the contrary in any other provision of this Act. 3 Superseded references On the commencement of this clause, in any Act (other than this Act or a provision of the old Act continued by this Act), or in any instrument made under any Act or in any other document of any kind— (a) a reference to the old Act is deemed to be a reference to the Building Act 1993; and (b) a reference to the Co-ordinator or Development Approvals Co-ordinator or the Development Approvals Co-ordinating Committee under the old Act is deemed to be a reference to the municipal building surveyor; and (c) a reference to building approval in relation to the old Act is deemed to be a reference to a building permit; and (d) a reference to a relevant authority in relation to the old Act is deemed to be a reference to a reporting authority; and

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(e) a reference to a certificate of occupancy in relation to the old Act or the building regulations is deemed to be a reference to an occupancy permit; and (f) a reference to the Building Control Qualification Board is deemed to be a reference to the Building Practitioners Board; and (g) a reference to a certificate of qualification as a building surveyor in relation to the old Act or any corresponding previous enactment is deemed to be a reference to registration as a building surveyor under this Act; and (h) a reference to a certificate of qualification as a building inspector in relation to the old Act or any corresponding previous enactment is deemed to be a reference to registration as a building inspector under this Act; and (i) a reference to the Building Control Accreditation Authority is deemed to be a reference to the Building Regulations Advisory Committee; and (j) a reference to the Building Control Technical Advisory Council or the Secretary, Building Control Technical Advisory Council is deemed to be a reference to the Building Regulations Advisory Committee; and (k) a reference to a Building Referees Board or the building referees is deemed to be a reference to the Building Appeals Board; and (l) a reference to the building regulations is deemed to be a reference to the building regulations made under this Act; and (m) a reference to the Director of Building

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Control is deemed to be a reference to the Commission; and (n) a reference to the State Building Surveyor is deemed to be a reference to the Commission; and (o) a reference to the approval of a temporary public building under the Health Act 1958 is deemed to be a reference to an occupancy permit issued under Division 2 of Part 5 of this Act in respect of a temporary structure. 4 Former bodies (1) On the commencement of this clause each former body is abolished and its members go out of office. (2) Subclause (1) does not affect any other provision of this Schedule— (a) dealing with proceedings before a former body; or (b) providing for the former body to continue for certain purposes. (3) If under this Schedule a former body continues for certain purposes the provisions of the old Act relating to membership and procedure continue to apply for those purposes. 5 Former officers A former officer who, immediately before the commencement of this clause, was a member of staff within the meaning of the Public Sector Management Act 1992 continues, subject to that Act, as a member of staff within the meaning of that Act, with a position or employment in the Department of Planning and Development corresponding as nearly as practicable to that held immediately before that commencement, on the same terms and conditions and with the same

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classification and accrued or accruing entitlements as applied to the person immediately before that commencement. 6 Actions commenced by Director of Building Control Any matter or thing of a continuing nature commenced under the old Act by the Director of Building Control may be continued and completed on and after the commencement of this clause by the Commission— (a) under this Act, if by virtue of the Interpretation of Legislation Act 1984 or this Schedule, this Act applies to that matter or thing; or (b) in any other case, under the old Act. 7 Directions about enforcement of old Act (1) A direction in force under section 16(1) of the old Act immediately before the commencement of this clause has effect, on and from that commencement, as if it were a declaration made and published under section 191 in relation to this Act. (2) A direction in force under section 16(2) of the old Act immediately before the commencement of this clause in relation to an area declared under the Alpine Resorts Act 1983 to be an alpine resort has effect, on and from the commencement of this clause, as if it were a declaration made and published under section 192 in relation to this Act. (3) On the date of commencement of this clause any reference in the direction to which subclause (1) or (2) applies to— (a) Part III of the old Act is deemed to be a reference to Part 3 of this Act; and (b) Part VIII of the old Act is deemed to be a reference to Part 8 of this Act; and

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(c) Part IX of the old Act is deemed to be a reference to Part 7 of this Act. 8 Building approvals (1) A building approval or building permit granted under the old Act or a corresponding previous enactment and existing immediately before the commencement of this clause is, on that commencement, deemed to be a building permit issued under this Act. (2) An application for building approval made under the old Act and not determined immediately before the commencement of this clause is deemed, on that commencement, to be an application made to a municipal building surveyor for a building permit under this Act. (3) Anything done before the commencement of this clause in relation to an application to which subclause (2) applies is, on and from that commencement, deemed to have been done for the purposes of this Act. (4) Without limiting subclause (3), a consent, refusal of consent, or condition required in relation to a matter by a relevant authority within the meaning of the old Act in relation to an application to which subclause (2) applies is deemed to be a consent, refusal of consent, or condition required by a prescribed reporting authority under this Act in relation to a prescribed matter. (5) If under section 20A of the old Act the Minister has appointed a person to act in place of a relevant authority in relation to an application to which subclause (2) applies, a consent, refusal of consent, or condition required in relation to a matter by that person has effect for the purposes of this Act as if the person were a prescribed reporting authority and the matter were a

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prescribed matter. (6) A levy is not payable under Division 2 of Part 12 in respect of an application to which subclause (2) applies. 9 Requirements before a building can be constructed (1) Sections 21A and 21B of the old Act continue to apply to a building in respect of which application for building approval has been made but not determined or lapsed before the commencement of this clause. (2) Section 21C of the old Act continues to apply to an application for review in respect of action taken under section 21A of that Act, whether the action is taken before or after the commencement of this clause, and the Building Appeals Board has no jurisdiction to hear those applications. (3) Section 21C of the old Act continues to apply to an application for review in respect of action taken under section 21B of that Act, if the application was made before the commencement of this clause, and the Building Appeals Board has no jurisdiction in respect of those applications. (4) The Building Appeals Board has jurisdiction to consider and determine an application for review in respect of action taken under section 21B of the old Act, whether the action is taken before or after the commencement of this clause, if the application for review was made on or after that commencement. (5) The provisions of this Act relating to appeals against a refusal of a building permit apply, with any necessary modifications, to an application referred to in subclause (4). 10 Continued immunities

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(1) Section 22 of the old Act continues to apply where — (a) a building approval was granted under the old Act before the commencement of this clause in respect of land liable to flooding; or (b) an exemption has, before that commencement, been granted from any requirement of the building regulations within the meaning of the old Act. (2) Section 80 of the old Act continues to apply to the former members and the former Registrar of the Building Control Accreditation Authority in respect of anything done by that Authority, a member of that Authority, an Advisory Committee to that Authority or the Registrar before the commencement of this clause. * * * * *
Sch. 4 cl. 11 repealed by No. 34/1997 s. 30(e).

12 Certificates of occupancy (1) A certificate of occupancy issued under the Victoria Building Regulations 1983 or under any corresponding previous regulations and in force immediately before the commencement of this clause is deemed, on and from that commencement, to be an occupancy permit issued under Division 1 of Part 5 of this Act, and may be amended or cancelled accordingly. (2) Despite anything to the contrary in the old Act or the regulations under it or in the Interpretation of Legislation Act 1984, a person who commenced building work more than 3 years before the commencement of this clause cannot, on or after the commencement of this clause, be charged with an offence because he or she was required to

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obtain a certificate of occupancy in respect of that building work and did not do so. (3) If the municipal building surveyor has received a notice under regulation 6.3 of the Victoria Building Regulations 1983 but has not issued a certificate of occupancy before the date of commencement of this clause, the municipal building surveyor may issue a certificate of occupancy in respect of that building on or after that commencement under those regulations. (4) If a municipal building surveyor has received advice under regulation 6.5 of the Victoria Building Regulations 1983, and has not revoked the existing certificate of occupancy under those regulations, that certificate of occupancy may be revoked and a new certificate of occupancy may be issued under those regulations on or after the commencement of this clause. (5) If a person has commenced building work 3 years or less than 3 years before the commencement of this clause but, at that commencement, has not obtained a certificate of occupancy in respect of that building work— (a) a certificate of occupancy may be obtained on or after that commencement under the old Act and the Victoria Building Regulations 1983 in respect of the building work; and (b) the old Act and the Victoria Building Regulations 1983 apply to any failure by that person to obtain a certificate of occupancy in respect of the building work whether before or after that commencement.

(6) A certificate of occupancy issued after the commencement of this clause under subclause (3), 363

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(4) or (5) is deemed to be an occupancy permit under Division 1 of Part 5 of this Act. (7) Subject to this clause, on and from the commencement of this clause— (a) no further certificate of occupancy can be issued under the Victoria Building Regulations 1983; and (b) a certificate of occupancy cannot be revoked under those regulations. 13 Instruments and other matters under the building regulations (1) Clause 11 and the amendment of the old Act do not affect the continuity of any instrument issued or served, or thing done, under the building regulations under the old Act before the commencement of this clause. (2) If— (a) a matter can be dealt with by issuing a building notice, building order or emergency order under Part 8 of this Act; and (b) the Victoria Building Regulations 1983 provide a mechanism for dealing with that matter (whether by notice, direction, requirement or otherwise)— that mechanism cannot be used to deal with that matter on or after the commencement of this clause. (3) A notice served under regulation 57.1 or 57.2 of the Victoria Building Regulations 1983 is deemed, on the commencement of this clause, to be an emergency order under Part 8 of this Act. (4) A notice served under regulation 3.2(1) or 57.3 of the Victoria Building Regulations 1983 is deemed, on the commencement of this clause, to be a

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building notice under Part 8 of this Act. (5) A notice issued under regulation 3.2(3) of the Victoria Building Regulations 1983 is deemed, on the commencement of this clause, to be a building order under section 111 of this Act. 14 Building actions Division 2 of Part 9 does not apply to building work commenced before the commencement of this clause or to building work for which an application for building approval was made before that commencement.
Sch. 4 cl. 15 repealed by No. 46/2008 s. 271.

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16 Building referees—proceedings (1) If— (a) under a provision of the old Act continued by this Act or under the building regulations under the old Act, there is a right to commence a proceeding before a Building Referees Board; and (b) a Building Referees Board has not commenced to hear the matter at the date of commencement of this clause; and (c) at the date of commencement of this clause the time within which that proceeding may be commenced has not expired— that proceeding may be commenced before the Building Appeals Board, which must conduct and determine the proceeding in accordance with the old Act and for that purpose has all the powers of a Building Referees Board. (2) If a person has a right to commence a proceeding

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referred to in subclause (1)(a) and, at the date of commencement of this clause, a Building Referees Board has commenced to hear the matter, the Board must continue and complete the proceeding in accordance with the old Act. (3) Any document lodged with a Building Referees Board in relation to a proceeding to which subclause (1) applies is deemed to have been lodged with the Building Appeals Board. (4) The old Act continues to apply in relation to the reservation of questions of law for the opinion of the Supreme Court in proceedings referred to in subclause (1) or (2). (5) A determination made on a proceeding referred to in subclause (1), (2) or (4) must, where appropriate, be expressed so that it can be given effect to under this Act, and must be given effect to accordingly. 17 Agreements required by determinations If, before or after the commencement of this clause, an agreement has been entered into in accordance with— (a) a determination of a Building Referees Board under the old Act; or (b) a determination of a Building Referees Board or the Building Appeals Board in a proceeding referred to in clause 16— this Act applies to the variation or release of the agreement as if it had been made in accordance with a determination under Part 10. 18 Accreditation (1) Anything which, immediately before the commencement of this clause, was for the time

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being accredited by the Building Control Accreditation Authority is deemed to be accredited by the Building Regulations Advisory Committee for the purposes of this Act. (2) An application for accreditation pending before the Building Control Accreditation Authority immediately before the commencement of this clause is deemed to be an application for accreditation made to the Building Regulations Advisory Committee, and may be determined by that Committee accordingly. 19 Building surveyors and inspectors (1) A person who, immediately before the commencement of this clause, holds a current certificate of qualification as a building surveyor issued or deemed to have been issued under the old Act is deemed to be registered under Part 11 of this Act as a building surveyor. (2) A person who, immediately before the commencement of this clause, holds a current certificate of qualification as a building inspector issued or deemed to have been issued under the old Act is deemed to be registered under Part 11 of this Act as a building inspector. (3) If a certificate of qualification referred to in subclause (1) or (2) was suspended immediately before the commencement of this clause, the deemed registration of the person concerned is suspended for the remainder of that period of suspension.

(4) The Building Qualifications Register existing under the old Act immediately before the commencement of this clause is deemed to form part of the Register of Building Practitioners. 367

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(5) A person deemed to be registered by this clause may apply to the Registrar of the Building Practitioners Board for a building practitioner's certificate. The application must include written proof that the applicant is covered by any insurance required under Part 9. (6) Without delay after receiving an application in accordance with subclause (5), the Registrar of the Building Practitioners Board must issue the applicant an appropriate building practitioner's certificate in accordance with Part 11. (7) No fee is payable for the issue of a building practitioner's certificate under subclause (6). (8) A building practitioner's certificate issued under subclause (6) remains in force for 12 months after the date of its issue. (9) A reference in Part 11 to the anniversary of the registration of a person under that Part is deemed to be a reference to the anniversary of the date of issue of a building practitioner's certificate under subclause (6) in relation to a person deemed to be registered under this clause. (10) An application made to the Building Control Qualification Board before the commencement of this clause but not determined at that commencement is deemed to be an application made to the Building Practitioners Board for registration under Part 11 of this Act.

20 Proceedings—Building Control Qualification Board (1) If before the commencement of this clause the Building Control Qualification Board had begun to hear a proceeding but had not made its

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determination at that commencement, it may continue and complete the proceeding in accordance with the old Act. (2) If before the commencement of this clause a proceeding has been commenced before the Building Control Qualification Board but at that commencement the Board has not begun to hear it, the Building Practitioners Board may hear and determine the proceeding in accordance with the old Act. (3) If— (a) before the commencement of this clause a person has appealed to the County Court against a decision of the Building Control Qualification Board and at that commencement that appeal has not been determined; or (b) the time within which a person may appeal to the County Court against a decision of that Board has not expired at that commencement — that appeal may be commenced, continued and completed in accordance with the old Act. (4) In a proceeding to which this clause applies the determination must be expressed so that it can be given effect to in the Register of Building Practitioners, and the Registrar of the Building Practitioners Board must give effect to that determination accordingly.

21 Offences by unregistered people—exemptions An approval in force under section 127A(2)(d) of the old Act immediately before the commencement of this clause is deemed to be an

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exemption under section 176(5)(b) of this Act. 22 Fire protection (1) Subject to this clause, Part VIII of the old Act continues to apply to a building if, before the commencement of this clause, a joint report or fire protection notice has been issued or an order has been made under that Part. (2) Part VIII of the old Act ceases to apply to a building if a building notice, building order or emergency order under Part 8 of this Act is issued for that building. (3) Part VIII of the old Act ceases to apply to a building at the end of twelve months after the day on which action was last taken by the council or the municipal building surveyor under that Part in respect of the building. 23 Arbitration (1) Part IX of the old Act continues to apply to— (a) an application made before the commencement of this clause for determination by the Director of Building Control; and (b) the referral, on or after that commencement, of a determination or application for a determination under that Part to arbitrators appointed in accordance with that Part, if the application or determination was made before that commencement; and (c) a matter which, before that commencement, has been referred to arbitrators under that Part; and (d) any other proceeding before arbitrators under that Part begun before that commencement. (2) A proceeding or matter to which subclause (1)

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applies may be continued or completed in accordance with Part IX of the old Act. 24 Temporary public buildings (1) An approval which, immediately before the commencement of this clause, is in force under Part XI of the Health Act 1958 for a temporary public building is deemed to be an occupancy permit issued under Division 2 of Part 5 in respect of a temporary structure, and may be amended or cancelled accordingly. (2) An occupancy permit deemed to be issued by subclause (1) lasts for five years from the date of commencement of this clause and is subject to the conditions set out in section 57 of this Act. (3) A building notice or building order may be issued under this Act if, before the commencement of this clause, there has been a failure to comply with Part XI of the Health Act 1958 or a regulation made for the purposes of that Part. 25 Delegations A document evidencing a resolution in force under section 163 of the old Act issued before the commencement of this clause is deemed to be an instrument of delegation under section 98 of the Local Government Act 1989. 26 Re-enacted provisions A provision of the old Act specified in Column 1 of the Table is deemed to be re-enacted (with modifications) by the provision of this Act appearing opposite in Column 2 of the Table.

27 Saving Provision A building permit issued in April 1996 in respect of prescribed building work within the meaning of section 27 of this Act as in force before the commencement of section 138 of the Domestic Building Contracts and Tribunal Act 1995 is deemed to have been validly issued even if the certificate referred to in section 27(4) had not been given to the relevant building surveyor before the building permit was issued. _______________

1 Plumbing Industry Commission is the successor of the Plumbing Industry Board (1) The members of the Plumbing Industry Board cease to hold office. (2) The Plumbing Industry Commission is the successor in law of the Plumbing Industry Board. (3) Any reference to the Plumbing Industry Board in any Act, subordinate instrument, agreement or other document as far as it relates to any period after the commencement of this section is to be treated as a reference to the Plumbing Industry Commission, unless the contrary intention appears. 2 First Plumbing Industry Commissioner The person who is the Chairperson of the Plumbing Industry Board immediately before the date section 20 of the Building (Plumbing) Act 1998 came into operation is to be the Plumbing Industry Commissioner until the date that person's appointment as Chairperson was due to expire and is to continue to have the same terms of employment. 3 Transitional provision for refrigeration mechanics (1) In this clause refrigeration work means the manufacture, installation, maintenance or repair of refrigeration, ventilation or air conditioning plant or equipment. (2) This clause applies to a person who carried out

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any refrigeration work at any time in the 12 months immediately before the date that section 8 of the Building (Plumbing) Act 1998 came into operation. (3) Despite Part 12A (as amended by section 8 of the Building (Plumbing) Act 1998), a person to whom this clause applies may continue to carry out refrigeration work without being registered or licensed under that Part— (a) for 12 months after the date section 8 came into operation; or (b) if the person applies before that 12 month period expires for registration or a licence that will enable her or him to carry out refrigeration work— (i) until the Commission grants the registration or licence; or (ii) if the Commission refuses to grant the registration or licence— (A) if the person does not apply to the Victorian Civil and Administrative Tribunal for a review of the refusal, until 21 days after the person is given notice of the refusal in writing; or (B) if the person applies to the Victorian Civil and Administrative Tribunal to have the refusal reviewed, until the Tribunal gives its decision to the person in writing or the person abandons the application for review. 4 Building Advisory Council

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The Building Advisory Council is deemed to be the same body despite the change to its membership made by section 4(1) of the Building (Plumbing) Act 1998. ÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍ

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Endnotes

ENDNOTES
1General Information Minister's second reading speech— Legislative Assembly: 11 November 1993 Legislative Council: 30 November 1993 The long title for the Bill for this Act was "A Bill to provide for the regulation of building and building standards, to amend various Acts and for other purposes.". Constitution Act 1975: Section 85(5) statement: Legislative Assembly: 11 November 1993 Legislative Council: 30 November 1993 Absolute majorities: Legislative Assembly: 26 November 1993 Legislative Council: 1 December 1993 The Building Act 1993 was assented to on 14 December 1993 and came into operation as follows: Sections 1, 2 on 14 December 1993; Schedule 4 clause 11(2)(3) on 14 April 1994: Government Gazette 14 April 1994 page 882; sections 3–23, 24(1)(2) (4), 25–56, 57(1)(a)(2), 58–135, 137–175, 176(1)(a)(i)–(iii)(b)(c) (2)–(7), 177–264, Schedules 1–3, 4 (clauses 1–10, 11(1)(4)–(7), 12–26), 5 on 1 July 1994: Special Gazette (No. 42) 1 July 1994 page 1; section 24(3) on 16 January 1995: Government Gazette 15 December 1994 page 3308; rest of Act on 1 March 1995: section 2(3).

1 S. 3(1) def. of building practitioner para (j): See section 137B for responsibilities of owner builders. 2 S. 3(1) def. of council: If a council refers a function to a regional corporation pursuant to Part 12, references in this Act to a council will be construed as references to the regional corporation and references to the municipal building surveyor will be construed as references to the regional building surveyor. 3 S. 3(1) def. of municipal building surveyor: See note 2. 4 S. 3(1) def. of owner: The definition of land in section 38 of the Interpretation of Legislation Act 1984, No. 10096/1984 reads as follows:

38 Definitions land includes buildings and other structures permanently affixed to land, land covered with water, and any estate, interest, easement, servitude, privilege or right in or over land.
5 S. 6: Government Gazette 16 June 1994 page 1590 reads as follows: Building Act 1993 SECTION 6—APPOINTED DAY I, Robert Maclellan, Minister for Planning, pursuant to section 6 of the Building Act 1993, appoint 1 July 1994, as the day on which the provisions of the Act relating to building practitioners shall apply to the Class of municipal building surveyors and Class of private building surveyor in the Category of building surveyor and the Class of municipal building inspector and the Class of private building inspector in the Category of building inspector. Government Gazette 27 October 1994 page 2888 reads as follows: Building Act 1993 SECTION 6—APPOINTED DAY I, Robert Maclellan, Minister for Planning, pursuant to section 6 of the Building Act 1993, appoint 1 November 1994 as the day on which the provisions of the Act relating to building practitioners shall apply to the Category of quantity surveyor, an engineer engaged in the building industry in the Category of engineer, Class of Civil engineer, Class of Mechanical engineer, and Class of Electrical engineer and draftsperson who carries on a business of preparing plans for building work or preparing documentation relating to permits or permit applications in the Category of draftsperson. Government Gazette 13 April 1995 page 882 reads as follows: Building Act 1993 SECTION 6—APPOINTED DAY I, Robert Maclellan, Minister for Planning, pursuant to section 6 of the Building Act 1993, appoint 5 May 1995 as the day on which the provisions of the Act relating to building practitioners shall apply to the Category of Builder—Class 1 Construction. Special Gazette (No. 45) 31 May 1995 reads as follows: Building Act 1993 SECTION 6—APPOINTED DAY I, Robert Maclellan, Minister for Planning, pursuant to section 6 of the Building Act 1993, appoint 14 June 1995 as the day on which the provisions of the Act relating to building practitioners shall apply to: (a) the Category of Builder— (i) Class 2—Demolition-single storey detached Class 1 and 10 buildings; and (ii) Class 3—Demolition general; and (b) the Category of Supervisor (temporary structures)— (i) Class 1—Stages, tiered seating stands, equipment platforms or towers fabricated on site from metal tubes and fittings or other scaffolding components and other materials; and

(ii) Class 2—Special structures—tents, marquees, safety barriers. Government Gazette 16 November 1995 page 3201 reads as follows: Building Act 1993 SECTION 6—APPOINTED DAY I, Robert Maclellan, Minister for Planning, pursuant to section 6 of the Building Act 1993, appoint 31 December 1995 as the day on which the provisions of the Act relating to building practitioners shall apply to all building practitioners within the meaning of the Act (to the extent that it does not already apply).

6 S. 12: The Planning and Environment Act 1987, No. 45/1987 (as amended by this Act) provides that the responsible authority must not include in a planning permit a condition which is inconsistent with this Act or the building regulations under this Act or a relevant determination of the Building Appeals Board under this Act in respect of the land to which the permit applies. 7 S. 49: See section 3(1) definition of conduct. 8 S. 53(2): See section 199 of this Act for powers of Commission. 9 S. 129 def. of building work: See section 3(1) definition of building work in this Act. 10 S. 190(1): See note 8. 11 S. 207: Section 18(2) of the Building (Amendment) Act 1995, No. 71/1995 reads as follows:

18 Building Advisory Council (2) The Building Advisory Council is deemed to be the same body despite the change in its membership.
12 S. 210: Section 19(2) of the Building (Amendment) Act 1995, No. 71/1995 reads as follows:

19 Building Regulations Advisory Committee (2) The Building Regulations Advisory Committee is deemed to be the same body despite the change in its membership.

13 Sch. 3 cl. 3(2)(a): Section 56 of the Interpretation of Legislation Act 1984, as it applies to the bankruptcy of a member of a Board to which Schedule 3 of this Act applies, has the effect that the office of a member of a Board becomes vacant if the member's property becomes subject to control under the law relating to bankruptcy.

Building Appeals Board's powers in general 161 regarding 151–155 157 156 151 150 adjoining properties application of building regulations building permit levy emergency protection work inspections of building work

right to do required work 251 Municipal building surveyors another council's surveyors acting as 214 applications for Court orders by 253 Commission acting as 190, 199, 214 definition 3 delegation 216B emergency orders issued by 102–105, 121–124 exemption from certain functions 216A fees for work outside municipal district 216 Minister acting as 225 occupancy permits and approvals issued by 57, 63, 70, 72 private building surveyors acting as 79, 215 role outside municipal district 216C safety inspections by 227E transfer of private building surveyors' functions to 81–83 See also Authorised persons Municipal councils administration of building provisions by 212 administrative orders from Minister to 226 agreements regarding building regulations 162–165 agreements with other councils or Commission 214 agreements with private building surveyors 215 appointment of building surveyors 213 definition of council 3 local laws regarding building regulations 8, 13 Minister acting as 225 Ministerial orders to 222–225 notice to Victorian Urban Development Authority of certain building permits 32A payment of costs by 224 power to bring proceedings 241 power to order vacation of buildings or land 252 records, register of building permits 30–32 records, register of occupancy permits, approvals 73–75 recovery of costs of emergency work 123 register of orders and notices 126

as municipal building surveyors 79, 215 definition 3 functions 76–77 notification of council of appointment 80 relationship with council 79 restrictions on appointments, ability to act 79 restrictions on service of building notices, orders 107 termination of appointment 81–82, 140 transfer of functions to second surveyor 81–83 See also Authorised persons Proceedings 241, 259 Professional indemnity insurance See Insurance – Building; Insurance – Plumbing Protection work See Adjoining property – Protection work Public authorities application of Act to 5, 217 building surveyors authorised by 221 definition 3 guidelines for buildings of 220 immunity for persons employed, appointed by 127 inspection of building work of 219 See also Authorised persons Public entertainment See Places of public entertainment Public liability insurance See Insurance – Building; Insurance – Plumbing Refrigeration mechanics Sch. 6 Registered building practitioners See Building practitioners Regulations power to make and matters provided for 261–262 See also Building regulations; Plumbing regulations Reporting authorities agreements regarding building regulations 162–165 appeals by and against 138 consent to building permits 23, 24, Sch. 2 consent to demolition 29A, 29B